Nedbank Ltd v Langpiets Vallei CC and Others (494/2023) [2023] ZAMPMBHC 70 (12 December 2023)

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 MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT) CASE NUMBER: 494/2023 In the matter between: -

NEDBANK LTD (REGISTRATION NO: 1951/000009/06) Plaintiff/Applicant and

LANGPIETS VALLEI CC (REGISTRATION NO: 2006/199143/23) First Defendant/Respondent

TERTIUS THERON LOUW (ID NO: 7[...]) Second Defendant/Respondent ANNA JOHANNA O’BRIEN (ID NO: 6[...]) Third Defendant/Respondent SHUMBAFOR (PTY) LTD (REGISTRATION NO: 2021/748352/07) Fourth Defendant/Respondent

KEVIN BUYS (ID NO: 8[...]) Fifth Defendant/Respondent REASON FOR JUDGMENT/ORDER GREYLING-COETZER AJ [1] This summary judgment application came before court on the unopposed motion roll for hearing on 11 August 2023. [2] On 17 November 2023 the following order was granted in favour of the applicant: - “Summary judgment is granted in favour of the applicant against the third respondent (to a maximum of R4.6 million) and fifth respondent (to a maximum of R1.2 million), jointly and severally and in solidum, the one paying the other to be absolved for CLAIM A – ACCOUNT NUMBER 1[...] 1.1 Payment in the amount of R2 257 286,44. 1.2 Interest on the aforementioned amount at the rate of 20.25% per annum calculated daily, compounded monthly as from 22 November 2022 to date of final payment (both days inclusive). 1.3 Cost of the action on an attorney and client scale. CLAIM B – ACCOUNT NUMBER 1[...] 2.1 Payment in the amount of R5 566 446.19. 2.2 Interest on the aforementioned amount at the rate of 11.75% per annum calculated daily, compounded monthly as from 22 November 2022 to date of final payment (both days inclusive). 2.3 Cost of action on an attorney and client scale. CLAIM C – ACCOUNT NUMBER 1[...] 3.1 Payment in the amount of R1 162 640.65. 3.2 Interest on the aforementioned amount at the rate of 10.75% per annum calculated daily, compounded monthly as from 22 November 2022 to date of final payment (both days inclusive). 3.3 Cost of action on an attorney and client scale.

4. The following relief is postponed sine die: 4.1 Effect is hereby given to the notarial general bond: B[...] for the purpose of execution by the plaintiff on the moveable property of the first defendant. 4.2 An order in terms of Rule 46 declaring the immoveable property set out above as specially executable for the amounts and interest per claim A, B and C above is postponed sine die (1) A unit consisting (a) Section number 4 as shown and more fully described on sectional plan number S[...], in the scheme known as Es Paradis in respect of the land and building or buildings situated at Tongaat, in the eThekwini metropolitan municipality, of which section the floor area according to the said sectional plan is 113 (one hundred and thirteen) square meters in extent and (b) an undivided share in the common property in the scheme apportioned to the said section in accordance with the participation quota as endorsed on the said sectional plan. Held by deed of transfer number S[...] and subject to such conditions as set out in the aforesaid deed. (2) An exclusive use area described as PAT4 (exclusive use patio) measuring 19 (nineteen) square meters being as such part of the common property, comprising the land and the scheme known as Es Paradis in respect of the land and building or buildings situated at Tongaat, in the eThekwini metropolitan municipality, as shown and more fully described on sectional plan number S[...] held by notarial deed of cession number S[...] and subject to such conditions as set out in the aforementioned notarial deed of cession. 4.3

An order in terms of Rule 46 for the issuing of a warrant of execution against the immoveable property set out above and ultimate sale in execution is hereby postponed sine die.” 3 Aforesaid order was granted without providing reasons. The reasons for aforementioned order are accordingly set out herein below. Introduction 4 As foreshadowed by that set out above, the summary judgment application came before court on the unopposed motion roll. The matter was enrolled for hearing on 11 August 2023. 5 In accordance with this Division’s practice directives, unopposed applications are dealt with on paper unless the judge ceased with the matter is of the opinion that a virtual hearing is required. This matter was allocated to be dealt with on paper and same was communicated to the legal representatives on 8 August 2023. 6 On 11 August 2023, shortly before the virtual hearings commenced, the court was advised by Mr. Chiloane a judge’s secretary that various emails was sent to him on behalf of the respondents, inter alia, seeking the matter to be heard virtually opposed to on paper. Subsequently documents the respondents sought to file were also sent to Mr. Chiloane per email. When the matter was called virtually, the court was advised that the respondents request the matter to be stood down until after lunch due to network issues experienced by counsel acting for the respondents. The

court was advised that an email was sent to Mr. Chiloane. Said email was indeed sent however only at 10h00 on the 11th of August 2023 and after the virtual hearings roll had commenced. Therefore, it was not surprising that the court was not aware of same. 7 The court was further informed that notwithstanding this court’s practice directives providing that no e-mail filing is permissible, as this Division is not set up for e-mail filing or Caselines, the third- and fifth respondents through their attorneys of record attempted to file an unsigned affidavit together with a Rule 30A notice per e-mail directed to Mr. Chiloane at 18h49 on 10 August 2023. Aforementioned was followed by a commissioned affidavit being e-mailed to him at 23h01 the same evening. 8 The court acceded to the request, to stand the matter down in order to allow the respondent’s counsel time to join the virtual hearing, but only stood the matter down until the end of the roll, and proceeded to deal with the remaining matters allocated for virtual hearing. 9 This matter was accordingly recalled at 11h02, at which time counsel for the respondents was still not in attendance. Mr. Naidoo (appearing for the respondents) indicated that notwithstanding attempts, he was unable to get hold of counsel, being Adv. Ntjana. The matter was further stood down until 12h00, and still there was no appearance by the

respondents’ counsel. 10 Pursuant to the parties being engaged on the fact that the matter was enrolled on the unopposed roll, and that no documents as purportedly filed per e-mail the previous night, were filed in line with Rule 32 and the practice directives of this Division, which clearly stipulate that the roll closes 5 (five) clear court days before the date of enrollment. Therefore, all court documents needed to be properly filed at court by the Friday preceding the Friday on which the matter has been enrolled. In the present matter that meant that all documents had to be filed by Friday, 4 August 2023 at 12h00. 11 Considering the nature of the application being that of summary judgment, the parties were indulged in addressing the court and argue their respective contentions succinctly on the provisio that the matter will be dealt with on paper, after receiving copies of the documents belatedly filed and tit being indicated that same should not be construed that the court accepts the documents for the purpose of relying on same. Mr. Naidoo, although not appropriately dressed for court proceeded to do so on behalf of the respondents. The parties were further provided with an opportunity to file heads of argument dealing with the summary judgment application and the purported Rule 30A notice. Consequentially the following order was made: “1. The matter is stood down to

18/08/2023 for the purpose of compliance with 2, 3 and 5 below. No appearance is required on 18/08/2023 in the event of compliance with 2,3 and 5 below. In the event that 2,3 and 5 below is not complied with the parties are to appear at 08h00 on 18/08/2023 per virtual hearing; 2. The 3rd and 5th Respondent/Defendant are to file their Heads of Argument in opposition of the Summary Judgment application and Rule 30A filed by Monday the 14th of August 2023 at 16h00 in hard copy; 3. The Applicant/Plaintiff to file its heads of argument, if any in response to that of the 3rd and 5th Respondent/Defendant and particularly in respect of the documents filed at court on 11/08/23 by Thursday 17 August 2023 at 14h00, in hard copy 4. The 3rd and 5th Respondent/Defendant are ordered to pay the cost of the hearing of 11 August 2023, on an opposed basis and on an attorney and client scale; 5. Adv Kgotso Ntjana is hereby ordered to file an affidavit advancing reasons why his/her conduct of failing to appear in circumstances where he/she has been briefed to appear in court at 10h00, should not be referred to the Legal Practice Council and relevant Society of Advocate for investigation whether said conduct constitutes professional conduct per the governing legislation and rules of society. The matter stood down until 18 August 2023 for the purpose of compliance with paragraphs 2, 3 and 5 of

aforementioned order. “ 12 The parties indeed complied and no hearing was conducted on 18 August 2023. The matter was accordingly considered on the papers filed at court, inclusive of the documents filed by the respondents, which was filed not filed per the time periods set out in both Rule 32 and this Division’s practice directives. Background 13 The applicant instituted action proceedings against the respondents in February 2023. The summons was served on the various respondents by the Sheriff, more particularly it was served on the third respondent on 9 February 2023 at her elected domicilium citandi et executandi by affixing. On 13 February 2023 at her residential address one Ms. M Buys, described as owner and occupier of the property, indicated that the third respondent is unknown to her. The fifth respondent’s wife is one Roxaan Michelle Buys. 14 In respect of the fifth respondent, the summons was served on 10 February 2023 by affixing to the post box at the main gate of this elected domicilium citandi et executandi address, pursuant to no access being provided to the Sheriff. A further attempt at service was made on the fifth respondent at Section 4, Es Paradis, 1[...] S[...] Beach Road, Desainagar, Tongaat, Kwazulu Natal, but again no access could be obtained to the complex, as the main gate was locked. 15 On 27 March 2023 a notice of appointment of attorneys of record

on behalf of the third- and fifth respondents was served on the applicant’s attorneys of record. In said notice the third- and fifth respondents’ attorneys indicated that they agree to service at their physical address or by way of e-mail to all four of the e-mail addresses provided in said notice. The notice further indicated that the third- and fifth respondents intended to defend the action by delivering a formal notice to such effect, upon the applicant removing the irregular step taken in the summons. Simultaneously a Rule 30(1) notice was served indicating that the dies provided was insufficient, considering that service took place outside the jurisdiction of the court, and that the respondents are entitled to a dies of 21 days. 16 The applicant’s attorneys of record engaged the respondents’ attorneys of record on 11 April 2023 by way of e-mail, recording that notwithstanding 21 days having lapsed their intention to defend had not been received. Their attention was further drawn to the fact that the third respondent’s domicilium-address does fall within the service area of this court and inviting the respondents to file their notice of intention to defend in the circumstances. The respondents abided, and on 2 May 2023 again per e-mail attended to service of their notice of intention to defend the action. 17 Pursuant to no plea being filed by the respondents, a notice of

bar was served on the respondents on 1 June 2023. Again, this was done via e-mail per the agreement between the parties. 18 The applicant, on 29 June 2023, and after receiving a special plea and plea from the respondents dated 8 June 2023, served this summary judgment application, which indicated the hearing date to be 11 August 2023. Forming part of the summary judgment application was both the respondents’ special plea and plea. 19 The summary judgment application was set down for 2 August 2023. The applicant served the notice of set down on the respondents via e-mail. On 3 August 2023, the applicant also attended to service of the practice note and draft orders, which the applicant intended to present to court on the hearing date. 20 As from date of the appointment of the respondents’ attorney of record the parties utilized email service to exchange documents. This was in compliance with the formal agreement reached between the parties. 21 The unopposed closed on 4 August 2023 and the matter was duly enrolled on the unopposed motion roll as this court’s practice provides. 22 As foreshadowed herein above, the respondents attempted to file a Rule 30A notice together with an affidavit resisting summary judgment by e-mail at 23h01 on 10 August 2023. Said documents were thereafter, and on 11 August 2023, filed at court. Attached to the affidavit resisting summary judgment was the

Rule 30A notice bearing a court stamp of 11 August 2023, as well as a copy of the respondents’ special plea and plea bearing a court stamp of 10 August 2023. 23 It is on the strength of the Rule 30A notice that Mr. Naidoo, on behalf of the respondents, contended that this court ought to strike the summary judgment application off the roll, alternatively to dismiss same with costs. Jurisdiction 24 The respondents’ in their plea contend that the case made by the applicant in its particulars of claim in respect of jurisdiction, is that the whole cause of action emanates from within this court’s jurisdiction, as the main agreements were concluded and breached within the court’s jurisdiction, and that the respondents’ domicilium addresses and/or business addresses and/or residential addresses fall within the court’s jurisdiction. This, according to the respondents, means that the applicant contends that the court has jurisdiction in all three agreements, as they were all concluded and breached within this court’s jurisdiction, and further that all the respondents’ domicilium addresses, alternatively business addresses and further alternatively residential addresses fall within the court’s jurisdiction. 25 The applicant contends that this court has the required jurisdiction on the basis that the principal debt in terms of the main agreements falls within the jurisdiction of this

court, and therefor confer jurisdiction over the suretyship agreements. 26 In the particulars of claim the applicant pleads that the court has jurisdiction to adjudicate upon this matter, as the whole cause of action emanates from within this court’s jurisdiction, as the main agreements were concluded and breached within the court’s jurisdiction. Further, that the respondents’ domicilium addresses and/or business addresses and/or residential addresses fall within the court’s jurisdiction. It is trite that it is not required of a plaintiff to specifically plead the grounds for jurisdiction, provided that the jurisdictional requirements are evident from the particulars of claim as a whole. 27 The applicant in its affidavit supporting summary judgment sets out that the principal debtor, being the first respondent, carries on business at Shop 1, The Heads Shopping Centre, No 1[ ], L[ ], 0[ ], which is situated at the corner of R37 and Bush Willow Street, Lydenburg. This also being the chosen domicilium address for the service of notices and delivery of documents as set out in all the main agreements. The exact wording of the relevant clause of the Banking Facilities Agreement under account number 1[...] states as follows: “If the offer is accepted, the parties to any resultant agreement chooses as their domicilium citandi et executandi the aforementioned address.” 28 It is so that

a choice of a domicilium citandi et executandi in itself, is not enough to establish the jurisdiction of the court.[1] 29 The applicant further contends that: 29.3 the banking facilities agreement - account number 1[...] was concluded in Lydenburg, Mpumalanga, the domicilium address of the first respondent, being the principal debtor, was indicated to be that of Lydenburg. 29.4 the second and fourth respondent’s suretyship agreement was concluded in Lydenburg, Mpumalanga. The second- and fourth respondents are residing and carrying on business within the jurisdiction of this court, and also having chosen their domiclium addresses to be in Lydenburg, Mpumalanga per annexures “D” and “F” to the summons. 29.5 the third respondent’s suretyship agreement was concluded in Boksburg, Gauteng Province; 29.6 the fifth respondent’s suretyship agreement was concluded in Boksburg, Gauteng Province; 29.7 the medium-term loan agreement – account number 1[...] was concluded in Port Elizabeth, Eastern Cape; 29.8 the medium-term loan agreement – account number 1[...] was concluded in Lydenburg, Mpumalanga; 29.9 moreover, considering the first respondent and principle debtor carries on business in Lydenburg Mpumalanga, the breach concerned can only be that of a principal debtor and thus occurred in Lydenburg, Mpumalanga. If not for the breach, there is no claim against the sureties. Suretyships

are accessory to the principal obligation, and the suretyships have no independent existence. The sureties are recorded in the main agreement between the applicant and the first respondent, therefore any attempt to suggest that the sureties ought to be sued from a different high court than the principal debtor, would not only result in a multiplicity of actions, but is impractical. 30 Before considering aforesaid it is prudent to determine whether the court has the required jurisdiction to entertain the matter at all. A court has to be satisfied that it does poses the required jurisdiction even if the issue is not raised by a respondent or defendant. In this matter jurisdiction or lack thereof is however raised, making it the prudent point of departure. 31 A court which has no jurisdiction to entertain an action, cannot have jurisdiction to adjudicate upon an application for summary judgment in that action and for that matter not even the Rule 30A as contended for by the respondents. If, however, a court is vested with jurisdiction in an action, it has the necessary jurisdiction to hear and dismiss an application for summary judgment brought in respect of said cause of action. Equally the court will then have the necessary jurisdiction to grant leave to defend the action if the respondent/s establish a bona fide defence. 32 In the context of a summary judgment application the

question arises how a challenge to the jurisdiction ought to be treated. Should it be accepted by a court as a bona fide defense on the mere raising thereof, justifying an order that the respondents are entitled to leave to defend, or does it require a finding on jurisdiction before proceeding with the summary judgment enquiry? In my view the latter would be the correct approach. If the court is found to be devoid of jurisdiction, it would not even enjoy the power to order leave to defend or rule on procedural issues or points of law raised. A finding on the issue of jurisdiction is therefore necessary in order to bring an end to the action due to the lack of jurisdiction, or to move to the summary judgment application.[2] 33 The respondents in their plea contend that the case made by the applicant in its particulars of claim in respect of jurisdiction, is that the whole cause of action emanates from within this court’s jurisdiction, as the main agreements were concluded and breached within the court’s jurisdiction, and that the respondents’ domicilium addresses and/or business addresses and/or residential addresses fall within the court’s jurisdiction. This, according to the respondents, means that the applicant contends that the court has jurisdiction

in all three agreements, as they were all concluded and breached within this court’s jurisdiction, and further that all the respondents’ domicilium addresses, alternatively business addresses and further alternatively residential addresses fall within the court’s jurisdiction. 34 The contention of the respondents is limited to that set out in the particulars of claim under the heading ‘jurisdiction’, but ignore the specific pleaded allegations in respect of the conclusion of the agreements, as respectively set out in paragraphs 8, 16, 18, 20 and 22, where the conclusion of the various agreements are pleaded in compliance with Rule 18. 35 According to the respondents the Bank Facilities Agreement was first signed by the applicant and then second respondent in Lydenburg, whereafter it was sent to the third respondent for signature, which was done in Benoni. According to the respondents this is confirmed by the Bank Facilities Agreement attached as annexure “A” to the summons. Furthermore, the Loan Agreement annexed as annexure “Q” to the summons, clearly indicates that the second- and third respondents signed the agreement in Port Elizabeth. 36 It was submitted on behalf of the respondents in their heads of argument that the Gauteng Local Division of the High Court has jurisdiction over the sureties, being the third- and fifth respondents, unless the applicant wants to rely on

the provision of clause 9 of annexure “E” to the summons, wherein the parties agreed to the jurisdiction of the magistrate’s court. 37 It is not denied that:- 36.1 the first defendant (principal debtor) carries on business in Lydenburg, Mpumalanga, and chose the domicilium address within this court’s jurisdiction.[3] 36.2 the second and fourth respondent’s suretyships agreements was entered into in Lydenburg, Mpumalanga; 37.3 the medium-term loan agreement – account number 1[...] and the banking facilities agreement - account number 1[...] was partially signed in part at Lydenburg, Mpumalanga and the chosen domicilium address is within this court’s jurisdiction; and 37.4 that they signed and concluded the suretyship agreements applicable to them. 38 Ordinarily, the onus of establishing that a division of the High Court concerned has jurisdiction, rests upon the plaintiff who, as dominus litis, must establish the court’s jurisdiction. However, where a defendant frames an objection in such a form to constitute a substantive plea, then such onus rests upon the defendant.[4] 39 It is trite that a contract of suretyship is an accessory to the contractual relationship between the principal debtor and the creditor. In this respect the Supreme Court of Appeal held in Van Zyl v Auto Commodities (Pty) Ltd[5] that: “[11] It follows from the accessory nature of the surety’s undertaking

that the liability of the surety is dependent on the obligation of the principal debtor. A consequence of this is that if the principal debtor’s debit is discharged, whether, by payment or release, the surety’s obligation is likewise discharged.” 40 Section 21 of the Superior style='letter-spacing:-.1pt'> Courts Act, 10 style='letter-spacing:-.1pt'> of 2013, provides as follows:- “21 Persons over whom and matters in relation to which Divisions have jurisdiction (1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power (2) A Division also has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to which such court has jurisdiction or who in terms of a third-party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other Division. ...” (own emphasis) 41 The phrase “causes arising” has the result that the court’s jurisdiction under Section 21 of the Superior Courts Act style='letter-spacing:-.75pt'> 10 of style='letter-spacing:-.55pt'> 2013 is simply determined by reference to the common law or any relevant statute. In such determination regard must

therefore be had to the jurisdictional connecting factors recognised by the common law.3 42 However, a cause arising’ is not to be confused with the cause of action. ‘Causes arising’ as referred to in section 21 of the Superior Courts Act supra means any action or legal proceedings which according to law, had duly originated within the court’s area of jurisdiction.[6] The primary object of aforementioned approach is to avoid any unnecessary proliferation of proceedings and the possibility of conflicting decisions on the same cause of action, between the same parties. In terms of the principle of causa continentia, where a court has jurisdiction over part of the cause of action, consideration of convenience, justice and good sense justify it exercising its jurisdiction over the whole cause. Aforementioned has been formalized by Section 21(2) of the Superior Courts Act (supra). 43 A court is not entitled to elect to hear or not to hear actions founded on convenience in circumstances where recognized grounds for jurisdiction exist.[7] 44 On the basis that the action against the first respondents’ action had duly originated within the court’s area of jurisdiction, the breach by the first respondent occurred within this court’s jurisdiction, the suretyship agreement being accessory in nature and the third and fifth respondent’s being joined to the cause of the first respondent, it’s

found that this court has the required jurisdiction to adjudicate upon the action and consequential summary judgment application. Rule 30A Notice 45 Before dealing with the Rule 30A notice and whether this court is barred from proceeding to adjudicate upon the summary judgment application by the mere delivery of a Rule 30A notice it is necessary to consider the object, nature and principles relating to a summary judgment application. 46 An application of summary judgment whether proper or ill-conceived, is generally warded off in two ways (1) by giving security[8] or (2) by satisfying he Court on affidavit, or with leave of the Court by oral evidence, that the defendant/respondent has a bona fide defence.[9] However, a respondent has far more ammunition to its disposal than that. It is permissible for a respondent in summary judgment proceedings to in limine, and without having recorded them in an opposing affidavit or even without having delivered an opposing affidavit at all[10], or advance any attack on a summary judgment application founded on the applicant’s affidavit in support of the summary judgment or the summons or raising a point of law.[11] 47 So too a respondent/defendant would not be regarded to be in default where he or she filed an affidavit in opposition to the application for summary judgment, but where their counsel failed to appear, this court would be

obliged to consider the content of such affidavit.[12] 48 In the present matter the respondents on the date of hearing filed the Rule 30A notice. Rule 30A relates to non-compliance with rules oppose to Rule 30 which deals with an irregular step take. It provides that:- “(1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, or with an order or direction made by a court or in a judicial case management process referred to in rule 37A, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days from the date of delivery of such notification, to apply for an order – (a) that such rule, notice, request, order or direction be complied with; or (b) that the claim or defence be struck out. (2) Where a party fails to comply within the period of 10 days contemplated in subrule (1), application may on notice be made to the court and the court may make such order thereon as it deems fit.” 49 Unlike Rule 30 there is no time period prescribed within which an aggrieved party should utilize Rule 30A. It provides a general remedy where a party does not comply with the rules of court. Notwithstanding, it should be unlisted within a reasonable time from becoming aware of the non-compliance complained of. The object of Rule 30A as in the case of its predecessor, Rule 30(5) is to ensure rules are complied

with and to move the litigation forward. Rule 30A provides the non- compliant party with an opportunity to cure the failure. If not remedied, it provides the aggrieved party with a remedy to call upon a court for intervention and either order compliance or striking of claim or defence. In the determination of the latter and in respect of the question whether there has been compliance as contemplated in Rule 30A(1) does not give rise to the exercise of a discretion by the court hearing the application. The court must determine, as an objective question of law or fact, whether there has been non-compliance.[13] 50 The respondents contend in their Rule 30A notice that the applicant failed to comply with Rule 32(2)(a), in that the applicant had applied for summary judgment in the absence of a plea being delivered by the respondents. Rule 32(2)(a) states that within 15 days after the date of delivery of the plea, the plaintiff will deliver a notice of application for summary judgment, together with an affidavit made by the plaintiff or by another person who can swear positively to the facts. 51 The summary judgment application was served on the respondents on 29 June 2023, and founded on the respondents’ special plea and plea. A copy of which was contained in the bundle of court document as one would expect it to be. The respondents alleged, they only served their plea on 10

August 2023, therefore the summary judgment application was not complaint with the rules of court. In this respect the respondents place reliance on the registrar’s stamp confirming the date of filing at court to be 10 August 2023. 52 During address and after the court enquired how the applicant in the circumstances came to be in possession of a copy of the plea dated 8 June 2023, exactly 5 days after the notice of bar having been served, Mr. Naidoo indicated that same was e- mailed to the applicant’s attorneys of record, but qualified it by elaborating that it was only for the purpose of service, and considering the definition of ‘delivery’ in Rule 1, it meant that the pleading had to be served upon the applicant but also filed at court. Once both these steps had been undertaken, it would constitute delivery. It is on this basis that the respondents contend delivery of the plea only took place on 10 August 2023. 53 Although Mr. Naidoo submitted that service upon an opponent and filing at court constitutes ‘delivery’, said submission ignores the practice directive of this Division, which specifically provides that there will be no piece-meal filing of court documents. Therefore, parties are to exchange pleadings amongst themselves, and would only file the documents at court once the matter is enrolled for hearing. In this respect paragraph 33 of the practice directive provides

as follows: “33.2.1 When new court papers or processes are issued, the registrar office shall open a court file in the normal course and in the file copy of the summons or notice of motion shall be retained. 33.2.2 Should there be an appearance to defend or notice to oppose filed, the registrar shall keep a copy thereof in the file and thereafter there shall be no further filing in piece meal. 33.2.3 Subject to paragraphs 33.2.1 and 33.2.2 above, further filing shall only take place when a complete set of court papers prepared from the plaintiffs’ or applicants’ own set of court papers, are filed on or before the close of the roll for hearing. 33.2.4 Parties or parties’ legal representatives must therefore exchange and serve pleadings amongst themselves in accordance with the timelines set out in the Rules of Court and only file with the registrar as contemplated in paragraph 33.2.3 above. That is, when the matter is on the roll for hearing and such filing of court papers to take place from at least five clear court days before close of the roll as contemplated in paragraph 34.1 hereunder. 33.2.5 Paragraphs above are meant to avoid loss of court papers or court files and unnecessary movements of in person filing at court. 33.2.6 Filing of set of court papers for matters that are on the roll for hearing shall start to take place at least 5 clear court days before the close of

the roll and filing after 12h00 on the close of the roll shall not be accepted. 54 The contrived nature of Mr. Naidoo’s submission is further revealed by the fact that if this court is to accept that the plea was only delivered on 10 August 2023, it would mean on the strength of the wording in Rule 22, read with Rule 26, that the respondents are ipso facto barred, in that the respondents failed to deliver their plea within 5 days from 1 June 2023. That is however not the de facto position, as the respondents were quite content by serving their plea dated 8 June 2023 on the fifth day pursuant to receipt of the notice of bar upon the applicant and accepted that it had complied with Rule 26 avoiding being barred. 55 The summary judgment application based on and containing the respondents’ special plea and plea, served on 29 June 2023, did not cause the respondents to rely on Rule 30A or take any action based on the purported non-compliance complained of currently. Nor did they take any action pursuant to receiving the notice of set down on 2 August 2023 or the practice note served on them on 3 August 2023. The respondents waited until the eve of the hearing to raise the ostensible non-compliance with the rules of court, and in my view with the sole purpose to delay the finalization of this matter. 56 Had the respondents been bona fide in their view in respect of delivery versus

service by e-mail, it would have at the very latest, pursuant to receipt of the summary judgment application, alternatively the notice of set down, raised the issue they now sought to raise in terms of the Rule 30A notice. The respondents equally had an opportunity to raise it in terms of Rule 32 by satisfying the court by way of affidavit delivered 5 days before the date on which the summary judgment application is to be heard, which would in the present instance have been 4 August 2023, dealing with its defenses as set out in their plea, and contending that although said plea was served, it had yet to be filed, and incorporate this purported defense of non-compliance with the rules therein. 57 On the strength of the Rule 30A notice, the respondents seek the summary judgment not to be entertained, and to be struck from the roll. Thereby allowing the 10days for the applicant to cure the complaint. This in my view would be an over technical approach in the present circumstances. The applicant position is clear they acted upon the received special plea and plea of the respondents. Other than causing a delay in the adjudication of the summary judgment it would serve no purpose to strike the matter from the roll. The summary judgment is thus properly before court. Any notion otherwise advanced by the respondents is ill conceived and constitutes an abuse of the remedy provided for

in Rule 30A. Affidavit resisting summary judgment 58 It is common cause that the respondents did not file an affidavit resisting summary judgment as provided for in Rule 32(3)(b). In the circumstances the applicant’s failure to comply with Rule 32(3) ought to be condoned before it can be regarded that the respondents have filed an affidavit resisting summary judgment.[14] 59 On a generous reading of the respondents’ affidavit, they attribute a single paragraph to the issue of condonation. Therein the respondents persist that the affidavit is not late and contend that for was far as it might be late, the affidavit ought to be accepted, as the applicant’s summary judgment application is not before court and therefore a nullity. Having found that the summary judgment application is indeed before court, the affidavit falls short of setting out a proper basis for condonation. Other than relying on the ostensible non-compliance of the applicant, the respondents’ make no attempt to explain their failure to timeously file the affidavit considering that they were well aware of the summary judgment application for 30 court days before the hearing but took no steps to raise that which they seek to do now, or timeously file their affidavit resisting summary judgment. 60 The affidavit further does not deal with any of the purported defenses raised in the plea, save for denying that the

respondents do not have a bona fide defense to the applicant’s claim, and contending that same would be amplified by a notice of amendment which is in the process of being prepared. To date no such amendment has been delivered 61 The respondents are not entitled to condonation for the belated filing of the affidavit. There is thus strictly speaking no affidavit before court and the matter is unopposed. Summary Judgment application 62 Notwithstanding the above finding, on the strength of the sui generis nature of a summary judgment application and that set out above in this respect the summary judgment application will be consider by having regard that which was pleaded in the special plea and plead of the respondents, together with the affidavit resisting summary judgment. 63 In the respondents’ special plea its pleaded that the surety agreements relied on by the applicant does not comply with the General Law Amendment Act, 50 of 1956, as the nature and amount of the principal debt are not capable of ascertainment by reference to the provisions of the deed of suretyship. 64 It is contended on behalf of the applicant in its affidavit supporting summary judgment that the respondents concluded suretyships agreements in consideration of any indebtedness incurred or to be incurred by the first respondent (principal debtor) in favour of the applicant. They bound themselves jointly

and severally as sureties and co-principal debtors in solidum for the repayment on demand of all amounts which the first respondent (principal debtor) may now or at any time in the future owe the applicant or the applicant’s successor in title or assigns, provided that the total amount recoverable from the third respondent shall not exceed in aggregate the sum of R4.6 million plus interest, discount commission, commission, legal cost on attorney-and-client scale and all other necessary and usual charges and expenses. Similarly, in respect of the fifth respondent, said surety was limited to R1.2 million plus interest, discount commission, commission, legal costs on attorney-and-client scale and all other necessary and usual charges and expenses. 65 The conclusion of these surety agreements is common cause, as is the indebtedness of the first respondent, as reflected in the undisputed certificates of balance. It is further common cause that the first respondent had breached the loan agreements with the applicant. 66 Section 6 of the General Law Amendment Act (supra) provides that no contract of surety entered into after the commencement of the Act will be valid, unless the terms thereof are embodied in a written document signed by or on behalf of the surety. 67 Clause 6 of the suretyship agreements set out the nature and amount of the obligations in terms of the surety

agreements, as well as the applicable interest rate, will be determined and proven by a certificate or any written evidence purporting to have been signed by a Nedbank manager whose capacity or authority does not have to be proven. Further, that unless the contrary was proven, the certificate will on mere production thereof be binding and prima facie proof of the content thereof, and of the fact that the amount is due and payable. The certificate will be valid as a liquid document (alternatively proof of a liquid amount) in any competent court or for any other purpose. 68 The respondents further contend that the deeds of suretyship may not be supplemented by incorporation of another document (such as the certificate of balance) or admissible extrinsic evidence in order to comply with the statutory requirements of the General Law Amendment Act. Further, that the applicant cannot place reliance on the main agreements read with the certificates of balance, as the suretyship agreements contain a whole agreement clause, thus the parole evidence rule does not find application. 69 It is contended on behalf of the applicant that the sureties relied on are limited sureties the limitation being clearly set out. There is thus no uncertainty as to the maximum amount that the sureties can be held responsible for. Further, the principal debt is determined by the certificate of balance or

the certificate of debt being prima facie proof of the indebtedness of the respondents as agreed to in the surety agreement, there is thus no reliance on further document which has not specifically been agreed upon. Consequentially there can be no confusion, and there is no non-compliance as contended by the respondents. The wording of the surety agreements are clear, in that the sureties bound themselves for the repayment on demand of all amounts which the first respondent may now or at any time thereafter owe the applicant. Yet same stands to be limited to the respective maximum amounts of the sureties. 70 The formulation of the suretyship agreements relied on by the applicant cannot be regarded as foreign or new. Such clauses have been widely used and enforced before and after the enactment of the General Law Amendment Act. There is nothing open-ended about that standard provision. The sureties stand surety for all debts that the first respondent may now or in the future owe to the applicant. That wording is clear and enforceable. For as long as anything is owing, the surety has an accessory obligation to the creditor. This view was fortified by the Supreme Court of Appeal in Sapirstin and Others v Anglo African Shipping Co SA Ltd[15] where the suretyship related to ‘all sums of money which the debtor may have in the past owed or may presently or in the future owe or any

cause of indebtedness whatsoever’. In said matter the court found that the suretyship in essence amounted to a promise by each of the sureties to the creditor to guarantee any indebtedness which the debtor may incur towards the creditor, and judgment was granted in favour of the creditor. 71 In Swift Air Freight CC v Singh[16] the court considered a suretyship for the due, proper and faithful performance by the debtor of the conditions, stipulations and obligations arising from various transactions between the creditor and the debtor. In that matter it was argued on behalf of the surety that the suretyship was unenforceable by virtue of the General Law Amendment Act, because ‘various transactions’ could mean some transactions and not others, or different and unspecified transactions, but not all transactions. The court held that the expression ‘various transactions’ must be taken to mean all transaction even though they may be or are of different classes. The intention of the creditor was to cast the net as wide as possible. The court held that the suretyship did not offend against the provision of Section 6 of the General Law Amendment Act. Further, the provision in a deed of suretyship that ‘the indebtedness of the said debtor shall at any time be determined and proved by a written certificate and such certificate shall be binding upon me and be conclusive proof of the amount

of the indebtedness ’ does not oust the court’s jurisdiction under the deed of suretyship, nor can it be regarded to be contra bonis mores. In Nedbank Ltd v Van der Berg and Others[17] the court held that such a provision provided incontrovertible proof of the amount of the indebtedness, and no evidence could be led to contradict it.[18] 72 The Supreme Court of Appeal in Rossouw v First Rand Bank Ltd[19] held that in regard to the High Court practice under Rule 32(4), that a certificate of balance handed in at a hearing, performs a useful function and is not to be hit by the provision of Rule 32(4). In the present matter the certificates of balance were not handed in, but formed part of the summary judgment application. So was it part of the summons. In turn, it was also not disputed. 73 Accordingly, this purported defense is not good in law, nor a bona fide defence as contemplated by Ruel 32. The suretyship agreements bemoaned was specifically limited in re the amount and secondly the exact amount would be proved admissibly so by the admitted certificates of balance and lastly the nature of the indebtedness is expressly and acceptably set out. 74 The respondents further allege that they did not receiving the letters of demand sent to them by way of registered mail. Clause 20 of the suretyship agreements provide that the applicant must give legal notice to the sureties at the

address set out in clause 1 of such agreements, and further that the notice, which is required to be served on the sureties, will have been properly served when it has either been delivered to the surety, or sent to the surety by registered mail to its last known address. 75 The notice of breach was delivered to every known address of the first- and fifth respondents. This the applicant proved by annexing copies of the letters of demand, as well as the registered mail slips and track-and-trace reports. These reports not only confirm postage of the registered mailed letters, but confirms that the first notifications had gone out to the recipients. The method of delivery was specifically identified in clause 20, and the respondents did not elect a different method or address for delivery. 76 In Rossouw (supra) the court dealt with the sending and delivery of a statutory Section 129 notice in terms of the National Credit Act, 34 of 2008.

Although said Act is not applicable in the present matter, the principle set out in that case is equally applicable when regard is had to the fact that the court found that delivery elected to take place through registered mail, is regarded as proper delivery. Conclusion 77 No challenge was raised to the remaining merits of the applicant’s claim but for the in limine and compliance defenses dealt with above. For the reasons set out above, the respondents have no bona fide defenses to the applicant’s claim. The purported defenses and the manner in which they were raised are not issues for trial, nor were they genuinely raised. 78 But for the applicant’s prayer for perfecting of the notarial general bond: B[...], the applicant is entitled to the relief sought. 79 The registration of a general notarial bond over all the moveable property of a debtor does not entitle the creditor (the applicant herein) to a real right of security in the property. A creditor will only obtain a real right upon perfecting of the general notarial bond. The perfection of general notarial bond entails two things, one, a successful application for attachment of such property, and secondly, an actual possession of the property to be obtained via attachment by the sheriff of the high court. Aforementioned amounts to nothing else than delivery of moveable property. For this reason, such relief is competent

in terms of summary judgment proceedings. 80 However, in the present matter it was made abundantly clear that the applicant only applies for summary judgment against the third- and fifth respondents. The order wherein the applicant seeks this court to effect to the general notarial bond is however directed at the moveable property of the first respondent, the general notarial bond being registered on similar terms. Therefore, said relief in my view is not competent in respect of the current proceedings, where summary judgment has been limited to relief against the aforementioned two respondents. Court order 11 August 2023 81 It is necessary to deal with an ancillary issue, which arose from the court order granted on 11 August 2023. More particularly, paragraph 5 thereof. 82 As quoted herein above, Advocate Kgotso Njtana was ordered to file an affidavit advancing reasons why his conduct of failing to appear in circumstances where he had been briefed, should not be referred to the Legal Practice Council and relevant Society of Advocates for investigation as possible professional misconduct. Advocate Ntjana duly complied and filed said affidavit, wherein he confirms that he was indeed briefed, but struggled to log on due to network issues at 10h00. He informed his instructing attorney of his situation, and confirmed the request that the matter stand down after lunch. According to

him, the fact that the matter was only stood down until the end of the roll, and therefore called at 12h00, was not communicated to him by his instructing attorney. This is confirmed by an affidavit deposed to by Ms. Makhetha, confirming that she is a practicing attorney and senior associate of Des Naidoo and Associate Attorneys. 83 Although the affidavit placed before court is rather scant and lack specificity, it is accepted that absent knowledge of the fact that the matter was indeed not stood down until after lunch, but recalled twice, in the latter instance being at 12h00, such conduct is excusable and does not justify a referral as foreshadowed in paragraph 5 of the order dated 11 August 2023. 84 It should however be reiterated that it is expected of counsel who is briefed in a matter, and who has the privilege of joining the proceedings virtually, to ensure that he or she is properly equipped to log in to said virtual hearing at the time required. Furthermore, that a request to stand a matter down remains an indulgence. The position is no different had the matter been heard in open court, and counsel found himself or herself caught up in traffic. There is an obligation on counsel to take all steps necessary to ensure that they appear at the time when a matter is called and should cater for unexpected events such as traffic, or poor connection. Costs 85 What remains to be

considered is the issue of costs. In the present matter, and considering the conduct foreshadowed in that set out herein above, an order for attorney-and-client costs is justified. Said order is further justified on the basis of the provision and the specific agreement to that extent, set out in the respective agreements relied on by the applicant. 86 It is for these reasons that the cost order in paragraph 2 above was granted. GREYLING-COETZER AJ DATE OF REASONS: 12 December 2023 FOR THE APPLICANT: Adv Van den Bergh Instructed by Stegmanns Inc E-mail: tracey@stegmanns.co.za FOR THE RESPONDENTS: Mr D Naidoo Dez Naidoo and Associates E-mail: dnattorneys@gmail.com

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

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER: 494/2023

In the matter between: -

NEDBANK LTD

(REGISTRATION NO: 1951/000009/06) Plaintiff/Applicant

and

LANGPIETS VALLEI CC

(REGISTRATION NO: 2006/199143/23) First Defendant/Respondent

TERTIUS THERON LOUW

(ID NO: 7[...]) Second Defendant/Respondent

ANNA JOHANNA O’BRIEN

(ID NO: 6[...]) Third Defendant/Respondent

SHUMBAFOR (PTY) LTD

(REGISTRATION NO: 2021/748352/07) Fourth Defendant/Respondent

KEVIN BUYS

(ID NO: 8[...]) Fifth Defendant/Respondent

REASON FOR JUDGMENT/ORDER

GREYLING-COETZER AJ

[1] This summary judgment application came before court on the unopposed motion roll for hearing on 11 August 2023.

[2] On 17 November 2023 the following order was granted in favour of the applicant:

-

“Summary judgment is granted in favour of the applicant against the third respondent (to a maximum of R4.6 million) and fifth respondent (to a maximum of R1.2 million), jointly and severally and in solidum, the one paying the other to be absolved for

CLAIM A – ACCOUNT NUMBER 1[...]

1.1 Payment in the amount of R2 257 286,44.

1.2 Interest on the aforementioned amount at the rate of 20.25% per annum calculated daily, compounded monthly as from 22 November 2022 to date of final payment (both days inclusive).

1.3 Cost of the action on an attorney and client scale.

CLAIM B – ACCOUNT NUMBER 1[...]

2.1 Payment in the amount of R5 566 446.19.

2.2 Interest on the aforementioned amount at the rate of 11.75% per annum calculated daily, compounded monthly as from 22 November 2022 to date of final payment (both days inclusive).

2.3 Cost of action on an attorney and client scale.

CLAIM C – ACCOUNT NUMBER 1[...]

3.1 Payment in the amount of R1 162 640.65.

3.2 Interest on the aforementioned amount at the rate of 10.75% per annum calculated daily, compounded monthly as from 22 November 2022 to date of final payment (both days inclusive).

3.3 Cost of action on an attorney and client scale.

4. The following relief is postponed sine die:

4.1 Effect is hereby given to the notarial general bond: B[...] for the purpose of execution by the plaintiff on the moveable property of the first defendant.

4.2 An order in terms of Rule 46 declaring the immoveable property set out above as specially executable for the amounts and interest per claim A, B and C above is postponed sine die

(1) A unit consisting (a) Section number 4 as shown and more fully described on sectional plan number S[...], in the scheme known as Es Paradis in respect of the land and building or buildings situated at Tongaat, in the eThekwini metropolitan municipality, of which section the floor area according to the said sectional plan is 113 (one hundred and thirteen) square meters in extent and (b) an undivided share in the common property in the scheme apportioned to the said section in accordance with the participation quota as endorsed on the said sectional plan. Held by deed of transfer number S[...] and subject to such conditions as set out in the aforesaid deed.

(2) An exclusive use area described as PAT4 (exclusive use patio) measuring 19 (nineteen) square meters being as such part of the common property, comprising the land and the scheme known as Es Paradis in respect of the land and building or buildings situated at Tongaat, in the eThekwini metropolitan municipality, as shown and more fully described on sectional plan number S[...] held by notarial deed of cession number S[...] and subject to such conditions as set out in the aforementioned notarial deed of cession.

4.3

An order in terms of Rule 46 for the issuing of a warrant of execution against the immoveable property set out above and ultimate sale in execution is hereby postponed sine die.”

3 Aforesaid order was granted without providing reasons. The reasons for aforementioned order are accordingly set out herein below.

Introduction

4 As foreshadowed by that set out above, the summary judgment application came before court on the unopposed motion roll. The matter was enrolled for hearing on 11 August 2023.

5 In accordance with this Division’s practice directives, unopposed applications are dealt with on paper unless the judge ceased with the matter is of the opinion that a virtual hearing is required. This matter was allocated to be dealt with on paper and same was communicated to the legal representatives on 8 August 2023.

6 On 11 August 2023, shortly before the virtual hearings commenced, the court was advised by Mr. Chiloane a judge’s secretary that various emails was sent to him on behalf of the respondents, inter alia, seeking the matter to be heard virtually opposed to on paper. Subsequently documents the respondents sought to file were also sent to Mr. Chiloane per email. When the matter was called virtually, the court was advised that the respondents request the matter to be stood down until after lunch due to network issues experienced by counsel acting for the respondents. The court was advised that an email was sent to Mr. Chiloane. Said email was indeed sent however only at 10h00 on the 11th of August 2023 and after the virtual hearings roll had commenced. Therefore, it was not surprising that the court was not aware of same.

7 The court was further informed that notwithstanding this court’s practice directives providing that no e-mail filing is permissible, as this Division is not set up for e-mail filing or Caselines, the third- and fifth respondents through their attorneys of record attempted to file an unsigned affidavit together with a Rule 30A notice per e-mail directed to Mr. Chiloane at 18h49 on 10 August 2023. Aforementioned was followed by a commissioned affidavit being e-mailed to him at 23h01 the same evening.

8 The court acceded to the request, to stand the matter down in order to allow the respondent’s counsel time to join the virtual hearing, but only stood the matter down until the end of the roll, and proceeded to deal with the remaining matters allocated for virtual hearing.

9 This matter was accordingly recalled at 11h02, at which time counsel for the respondents was still not in attendance. Mr. Naidoo (appearing for the respondents) indicated that notwithstanding attempts, he was unable to get hold of counsel, being Adv. Ntjana. The matter was further stood down until 12h00, and still there was no appearance by the respondents’ counsel.

10 Pursuant to the parties being engaged on the fact that the matter was enrolled on the unopposed roll, and that no documents as purportedly filed per e-mail the previous night, were filed in line with Rule 32 and the practice directives of this Division, which clearly stipulate that the roll closes 5 (five) clear court days before the date of enrollment. Therefore, all court documents needed to be properly filed at court by the Friday preceding the Friday on which the matter has been enrolled. In the present matter that meant that all documents had to be filed by Friday, 4 August 2023 at 12h00.

11 Considering the nature of the application being that of summary judgment, the parties were indulged in addressing the court and argue their respective contentions succinctly on the provisio that the matter will be dealt with on paper, after receiving copies of the documents belatedly filed and tit being indicated that same should not be construed that the court accepts the documents for the purpose of relying on same. Mr. Naidoo, although not appropriately dressed for court proceeded to do so on behalf of the respondents. The parties were further provided with an opportunity to file heads of argument dealing with the summary judgment application and the purported Rule 30A notice. Consequentially the following order was made:

“1. The matter is stood down to 18/08/2023 for the purpose of compliance with 2, 3 and 5 below. No appearance is required on 18/08/2023 in the event of compliance with 2,3 and 5 below. In the event that 2,3 and 5 below is not complied with the parties are to appear at 08h00 on 18/08/2023 per virtual hearing;

2. The 3rd and 5th Respondent/Defendant are to file their Heads of Argument in opposition of the Summary Judgment application and Rule 30A filed by Monday the 14th of August 2023 at 16h00 in hard copy;

3. The Applicant/Plaintiff to file its heads of argument, if any in response to that of the 3rd and 5th Respondent/Defendant and particularly in respect of the documents filed at court on 11/08/23 by Thursday 17 August 2023 at 14h00, in hard copy

4. The 3rd and 5th Respondent/Defendant are ordered to pay the cost of the hearing of 11 August 2023, on an opposed basis and on an attorney and client scale;

5. Adv Kgotso Ntjana is hereby ordered to file an affidavit advancing reasons why his/her conduct of failing to appear in circumstances where he/she has been briefed to appear in court at 10h00, should not be referred to the Legal Practice Council and relevant Society of Advocate for investigation whether said conduct constitutes professional conduct per the governing legislation and rules of society. The matter stood down until 18 August 2023 for the purpose of compliance with paragraphs 2, 3 and 5 of aforementioned order. “

12 The parties indeed complied and no hearing was conducted on 18 August 2023. The matter was accordingly considered on the papers filed at court, inclusive of the documents filed by the respondents, which was filed not filed per the time periods set out in both Rule 32 and this Division’s practice directives.

Background

13 The applicant instituted action proceedings against the respondents in February 2023. The summons was served on the various respondents by the Sheriff, more particularly it was served on the third respondent on 9 February 2023 at her elected domicilium citandi et executandi by affixing. On 13 February 2023 at her residential address one Ms. M Buys, described as owner and occupier of the property, indicated that the third respondent is unknown to her. The fifth respondent’s wife is one Roxaan Michelle Buys.

14 In respect of the fifth respondent, the summons was served on 10 February 2023 by affixing to the post box at the main gate of this elected domicilium citandi et executandi address, pursuant to no access being provided to the Sheriff. A further attempt at service was made on the fifth respondent at Section 4, Es Paradis, 1[...] S[...] Beach Road, Desainagar, Tongaat, Kwazulu Natal, but again no access could be obtained to the complex, as the main gate was locked.

15 On 27 March 2023 a notice of appointment of attorneys of record on behalf of the third- and fifth respondents was served on the applicant’s attorneys of record. In said notice the third- and fifth respondents’ attorneys indicated that they agree to service at their physical address or by way of e-mail to all four of the e-mail addresses provided in said notice. The notice further indicated that the third- and fifth respondents intended to defend the action by delivering a formal notice to such effect, upon the applicant removing the irregular step taken in the summons. Simultaneously a Rule 30(1) notice was served indicating that the dies provided was insufficient, considering that service took place outside the jurisdiction of the court, and that the respondents are entitled to a dies of 21 days.

16 The applicant’s attorneys of record engaged the respondents’ attorneys of record on 11 April 2023 by way of e-mail, recording that notwithstanding 21 days having lapsed their intention to defend had not been received. Their attention was further drawn to the fact that the third respondent’s domicilium-address does fall within the service area of this court and inviting the respondents to file their notice of intention to defend in the circumstances. The respondents abided, and on 2 May 2023 again per e-mail attended to service of their notice of intention to defend the action.

17 Pursuant to no plea being filed by the respondents, a notice of bar was served on the respondents on 1 June 2023. Again, this was done via e-mail per the agreement between the parties.

18 The applicant, on 29 June 2023, and after receiving a special plea and plea from the respondents dated 8 June 2023, served this summary judgment application, which indicated the hearing date to be 11 August 2023. Forming part of the summary judgment application was both the respondents’ special plea and plea.

19 The summary judgment application was set down for 2 August 2023. The applicant served the notice of set down on the respondents via e-mail. On 3 August 2023, the applicant also attended to service of the practice note and draft orders, which the applicant intended to present to court on the hearing date.

20 As from date of the appointment of the respondents’ attorney of record the parties utilized email service to exchange documents. This was in compliance with the formal agreement reached between the parties.

21 The unopposed closed on 4 August 2023 and the matter was duly enrolled on the unopposed motion roll as this court’s practice provides.

22 As foreshadowed herein above, the respondents attempted to file a Rule 30A notice together with an affidavit resisting summary judgment by e-mail at 23h01 on 10 August 2023. Said documents were thereafter, and on 11 August 2023, filed at court. Attached to the affidavit resisting summary judgment was the Rule 30A notice bearing a court stamp of 11 August 2023, as well as a copy of the respondents’ special plea and plea bearing a court stamp of 10 August 2023.

23 It is on the strength of the Rule 30A notice that Mr. Naidoo, on behalf of the respondents, contended that this court ought to strike the summary judgment application off the roll, alternatively to dismiss same with costs.

Jurisdiction

24 The respondents’ in their plea contend that the case made by the applicant in its particulars of claim in respect of jurisdiction, is that the whole cause of action emanates from within this court’s jurisdiction, as the main agreements were concluded and breached within the court’s jurisdiction, and that the respondents’ domicilium addresses and/or business addresses and/or residential addresses fall within the court’s jurisdiction. This, according to the respondents, means that the applicant contends that the court has jurisdiction in all three agreements, as they were all concluded and breached within this court’s jurisdiction, and further that all the respondents’ domicilium addresses, alternatively business addresses and further alternatively residential addresses fall within the court’s jurisdiction.

25 The applicant contends that this court has the required jurisdiction on the basis that the principal debt in terms of the main agreements falls within the jurisdiction of this court, and therefor confer jurisdiction over the suretyship agreements.

26 In the particulars of claim the applicant pleads that the court has jurisdiction to adjudicate upon this matter, as the whole cause of action emanates from within this court’s jurisdiction, as the main agreements were concluded and breached within the court’s jurisdiction. Further, that the respondents’ domicilium addresses and/or business addresses and/or residential addresses fall within the court’s jurisdiction. It is trite that it is not required of a plaintiff to specifically plead the grounds for jurisdiction, provided that the jurisdictional requirements are evident from the particulars of claim as a whole.

27 The applicant in its affidavit supporting summary judgment sets out that the principal debtor, being the first respondent, carries on business at Shop 1, The Heads Shopping Centre, No 1[ ], L[ ], 0[ ], which is situated at the corner of R37 and Bush Willow Street, Lydenburg. This also being the chosen domicilium address for the service of notices and delivery of documents as set out in all the main agreements. The exact wording of the relevant clause of the Banking Facilities Agreement under account number 1[...] states as follows:

“If the offer is accepted, the parties to any resultant agreement chooses as their domicilium citandi et executandi the aforementioned address.”

28 It is so that a choice of a domicilium citandi et executandi in itself, is not enough to establish the jurisdiction of the court.[1]

29 The applicant further contends that:

29.3 the banking facilities agreement - account number 1[...] was concluded in Lydenburg, Mpumalanga, the domicilium address of the first respondent, being the principal debtor, was indicated to be that of Lydenburg.

29.4 the second and fourth respondent’s suretyship agreement was concluded in Lydenburg, Mpumalanga. The second- and fourth respondents are residing and carrying on business within the jurisdiction of this court, and also having chosen their domiclium addresses to be in Lydenburg, Mpumalanga per annexures “D” and “F” to the summons.

29.5 the third respondent’s suretyship agreement was concluded in Boksburg, Gauteng Province;

29.6 the fifth respondent’s suretyship agreement was concluded in Boksburg, Gauteng Province;

29.7 the medium-term loan agreement – account number 1[...] was concluded in Port Elizabeth, Eastern Cape;

29.8 the medium-term loan agreement – account number 1[...] was concluded in Lydenburg, Mpumalanga;

29.9 moreover, considering the first respondent and principle debtor carries on business in Lydenburg Mpumalanga, the breach concerned can only be that of a principal debtor and thus occurred in Lydenburg, Mpumalanga. If not for the breach, there is no claim against the sureties. Suretyships are accessory to the principal obligation, and the suretyships have no independent existence. The sureties are recorded in the main agreement between the applicant and the first respondent, therefore any attempt to suggest that the sureties ought to be sued from a different high court than the principal debtor, would not only result in a multiplicity of actions, but is impractical.

30 Before considering aforesaid it is prudent to determine whether the court has the required jurisdiction to entertain the matter at all. A court has to be satisfied that it does poses the required jurisdiction even if the issue is not raised by a respondent or defendant. In this matter jurisdiction or lack thereof is however raised, making it the prudent point of departure.

31 A court which has no jurisdiction to entertain an action, cannot have jurisdiction to adjudicate upon an application for summary judgment in that action and for that matter not even the Rule 30A as contended for by the respondents. If, however, a court is vested with jurisdiction in an action, it has the necessary jurisdiction to hear and dismiss an application for summary judgment brought in respect of said cause of action. Equally the court will then have the necessary jurisdiction to grant leave to defend the action if the respondent/s establish a bona fide defence.

32 In the context of a summary judgment application the question arises how a challenge to the jurisdiction ought to be treated. Should it be accepted by a court as a bona fide defense on the mere raising thereof, justifying an order that the respondents are entitled to leave to defend, or does it require a finding on jurisdiction before proceeding with the summary judgment enquiry? In my view the latter would be the correct approach. If the court is found to be devoid of jurisdiction, it would not even enjoy the power to order leave to defend or rule on procedural issues or points of law raised. A finding on the issue of jurisdiction is therefore necessary in order to bring an end to the action due to the lack of jurisdiction, or to move to the summary judgment application.[2]

33 The respondents in their plea contend that the case made by the applicant in its particulars of claim in respect of jurisdiction, is that the whole cause of action emanates from within this court’s jurisdiction, as the main agreements were concluded and breached within the court’s jurisdiction, and that the respondents’ domicilium addresses and/or business addresses and/or residential addresses fall within the court’s jurisdiction. This, according to the respondents, means that the applicant contends that the court has jurisdiction

in all three agreements, as they were all concluded and breached within this court’s jurisdiction, and further that all the respondents’ domicilium addresses, alternatively business addresses and further alternatively residential addresses fall within the court’s jurisdiction.

34 The contention of the respondents is limited to that set out in the particulars of claim under the heading ‘jurisdiction’, but ignore the specific pleaded allegations in respect of the conclusion of the agreements, as respectively set out in paragraphs 8, 16, 18, 20 and 22, where the conclusion of the various agreements are pleaded in compliance with Rule 18.

35 According to the respondents the Bank Facilities Agreement was first signed by the applicant and then second respondent in Lydenburg, whereafter it was sent to the third respondent for signature, which was done in Benoni. According to the respondents this is confirmed by the Bank Facilities Agreement attached as annexure “A” to the summons. Furthermore, the Loan Agreement annexed as annexure “Q” to the summons, clearly indicates that the second- and third respondents signed the agreement in Port Elizabeth.

36 It was submitted on behalf of the respondents in their heads of argument that the Gauteng Local Division of the High Court has jurisdiction over the sureties, being the third- and fifth respondents, unless the applicant wants to rely on the provision of clause 9 of annexure “E” to the summons, wherein the parties agreed to the jurisdiction of the magistrate’s court.

37 It is not denied that:-

36.1 the first defendant (principal debtor) carries on business in Lydenburg, Mpumalanga, and chose the domicilium address within this court’s jurisdiction.[3]

36.2 the second and fourth respondent’s suretyships agreements was entered into in Lydenburg, Mpumalanga;

37.3 the medium-term loan agreement – account number 1[...] and the banking facilities agreement - account number 1[...] was partially signed in part at Lydenburg, Mpumalanga and the chosen domicilium address is within this court’s jurisdiction; and

37.4 that they signed and concluded the suretyship agreements applicable to them.

38 Ordinarily, the onus of establishing that a division of the High Court concerned has jurisdiction, rests upon the plaintiff who, as dominus litis, must establish the court’s jurisdiction. However, where a defendant frames an objection in such a form to constitute a substantive plea, then such onus rests upon the defendant.[4]

39 It is trite that a contract of suretyship is an accessory to the contractual relationship between the principal debtor and the creditor. In this respect the Supreme Court of Appeal held in Van Zyl v Auto Commodities (Pty) Ltd[5] that:

“[11] It follows from the accessory nature of the surety’s undertaking that the liability of the surety is dependent on the obligation of the principal debtor. A consequence of this is that if the principal debtor’s debit is discharged, whether, by payment or release, the surety’s obligation is likewise discharged.”

40 Section 21 of the Superior style='letter-spacing:-.1pt'> Courts Act, 10 style='letter-spacing:-.1pt'> of 2013, provides as follows:-

“21 Persons over whom and matters in relation to which Divisions have jurisdiction

(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power

(2) A Division also has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to which such court has jurisdiction or who in terms of a third-party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other Division.

...” (own emphasis)

41 The phrase “causes arising” has the result that the court’s jurisdiction under Section 21 of the Superior Courts Act style='letter-spacing:-.75pt'> 10 of style='letter-spacing:-.55pt'> 2013 is simply determined by reference to the common law or any relevant statute. In such determination regard must therefore be had to the jurisdictional connecting factors recognised by the common law.3

42 However, a cause arising’ is not to be confused with the cause of action. ‘Causes arising’ as referred to in section 21 of the Superior Courts Act supra means any action or legal proceedings which according to law, had duly originated within the court’s area of jurisdiction.[6] The primary object of aforementioned approach is to avoid any unnecessary proliferation of proceedings and the possibility of conflicting decisions on the same cause of action, between the same parties. In terms of the principle of causa continentia, where a court has jurisdiction over part of the cause of action, consideration of convenience, justice and good sense justify it exercising its jurisdiction over the whole cause. Aforementioned has been formalized by Section 21(2) of the Superior Courts Act (supra).

43 A court is not entitled to elect to hear or not to hear actions founded on convenience in circumstances where recognized grounds for jurisdiction exist.[7]

44 On the basis that the action against the first respondents’ action had duly originated within the court’s area of jurisdiction, the breach by the first respondent occurred within this court’s jurisdiction, the suretyship agreement being accessory in nature and the third and fifth respondent’s being joined to the cause of the first respondent, it’s found that this court has the required jurisdiction to adjudicate upon the action and consequential summary judgment application.

Rule 30A Notice

45 Before dealing with the Rule 30A notice and whether this court is barred from proceeding to adjudicate upon the summary judgment application by the mere delivery of a Rule 30A notice it is necessary to consider the object, nature and principles relating to a summary judgment application.

46 An application of summary judgment whether proper or ill-conceived, is generally warded off in two ways (1) by giving security[8] or (2) by satisfying he Court on affidavit, or with leave of the Court by oral evidence, that the defendant/respondent has a bona fide defence.[9] However, a respondent has far more ammunition to its disposal than that. It is permissible for a respondent in summary judgment proceedings to in limine, and without having recorded them in an opposing affidavit or even without having delivered an opposing affidavit at all[10], or advance any attack on a summary judgment application founded on the applicant’s affidavit in support of the summary judgment or the summons or raising a point of law.[11]

47 So too a respondent/defendant would not be regarded to be in default where he or she filed an affidavit in opposition to the application for summary judgment, but where their counsel failed to appear, this court would be obliged to consider the content of such affidavit.[12]

48 In the present matter the respondents on the date of hearing filed the Rule 30A notice. Rule 30A relates to non-compliance with rules oppose to Rule 30 which deals with an irregular step take. It provides that:-

“(1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, or with an order or direction made by a court or in a judicial case management process referred to in rule 37A, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days from the date of delivery of such notification, to apply for an order –

(a) that such rule, notice, request, order or direction be complied with; or

(b) that the claim or defence be struck out.

(2) Where a party fails to comply within the period of 10 days contemplated in subrule (1), application may on notice be made to the court and the court may make such order thereon as it deems fit.”

49 Unlike Rule 30 there is no time period prescribed within which an aggrieved party should utilize Rule 30A. It provides a general remedy where a party does not comply with the rules of court. Notwithstanding, it should be unlisted within a reasonable time from becoming aware of the non-compliance complained of. The object of Rule 30A as in the case of its predecessor, Rule 30(5) is to ensure rules are complied with and to move the litigation forward. Rule 30A provides the non- compliant party with an opportunity to cure the failure. If not remedied, it provides the aggrieved party with a remedy to call upon a court for intervention and either order compliance or striking of claim or defence. In the determination of the latter and in respect of the question whether there has been compliance as contemplated in Rule 30A(1) does not give rise to the exercise of a discretion by the court hearing the application. The court must determine, as an objective question of law or fact, whether there has been non-compliance.[13]

50 The respondents contend in their Rule 30A notice that the applicant failed to comply with Rule 32(2)(a), in that the applicant had applied for summary judgment in the absence of a plea being delivered by the respondents. Rule 32(2)(a) states that within 15 days after the date of delivery of the plea, the plaintiff will deliver a notice of application for summary judgment, together with an affidavit made by the plaintiff or by another person who can swear positively to the facts.

51 The summary judgment application was served on the respondents on 29 June 2023, and founded on the respondents’ special plea and plea. A copy of which was contained in the bundle of court document as one would expect it to be. The respondents alleged, they only served their plea on 10 August 2023, therefore the summary judgment application was not complaint with the rules of court. In this respect the respondents place reliance on the registrar’s stamp confirming the date of filing at court to be 10 August 2023.

52 During address and after the court enquired how the applicant in the circumstances came to be in possession of a copy of the plea dated 8 June 2023, exactly 5 days after the notice of bar having been served, Mr. Naidoo indicated that same was e- mailed to the applicant’s attorneys of record, but qualified it by elaborating that it was only for the purpose of service, and considering the definition of ‘delivery’ in Rule 1, it meant that the pleading had to be served upon the applicant but also filed at court. Once both these steps had been undertaken, it would constitute delivery. It is on this basis that the respondents contend delivery of the plea only took place on 10 August 2023.

53 Although Mr. Naidoo submitted that service upon an opponent and filing at court constitutes ‘delivery’, said submission ignores the practice directive of this Division, which specifically provides that there will be no piece-meal filing of court documents. Therefore, parties are to exchange pleadings amongst themselves, and would only file the documents at court once the matter is enrolled for hearing. In this respect paragraph 33 of the practice directive provides as follows:

“33.2.1 When new court papers or processes are issued, the registrar office shall open a court file in the normal course and in the file copy of the summons or notice of motion shall be retained.

33.2.2 Should there be an appearance to defend or notice to oppose filed, the registrar shall keep a copy thereof in the file and thereafter there shall be no further filing in piece meal.

33.2.3 Subject to paragraphs 33.2.1 and 33.2.2 above, further filing shall only take place when a complete set of court papers prepared from the plaintiffs’ or applicants’ own set of court papers, are filed on or before the close of the roll for hearing.

33.2.4 Parties or parties’ legal representatives must therefore exchange and serve pleadings amongst themselves in accordance with the timelines set out in the Rules of Court and only file with the registrar as contemplated in paragraph 33.2.3 above. That is, when the matter is on the roll for hearing and such filing of court papers to take place from at least five clear court days before close of the roll as contemplated in paragraph 34.1 hereunder.

33.2.5 Paragraphs above are meant to avoid loss of court papers or court files and unnecessary movements of in person filing at court.

33.2.6 Filing of set of court papers for matters that are on the roll for hearing shall start to take place at least 5 clear court days before the close of the roll and filing after 12h00 on the close of the roll shall not be accepted.

54 The contrived nature of Mr. Naidoo’s submission is further revealed by the fact that if this court is to accept that the plea was only delivered on 10 August 2023, it would mean on the strength of the wording in Rule 22, read with Rule 26, that the respondents are ipso facto barred, in that the respondents failed to deliver their plea within 5 days from 1 June 2023. That is however not the de facto position, as the respondents were quite content by serving their plea dated 8 June 2023 on the fifth day pursuant to receipt of the notice of bar upon the applicant and accepted that it had complied with Rule 26 avoiding being barred.

55 The summary judgment application based on and containing the respondents’ special plea and plea, served on 29 June 2023, did not cause the respondents to rely on Rule 30A or take any action based on the purported non-compliance complained of currently. Nor did they take any action pursuant to receiving the notice of set down on 2 August 2023 or the practice note served on them on 3 August 2023. The respondents waited until the eve of the hearing to raise the ostensible non-compliance with the rules of court, and in my view with the sole purpose to delay the finalization of this matter.

56 Had the respondents been bona fide in their view in respect of delivery versus service by e-mail, it would have at the very latest, pursuant to receipt of the summary judgment application, alternatively the notice of set down, raised the issue they now sought to raise in terms of the Rule 30A notice. The respondents equally had an opportunity to raise it in terms of Rule 32 by satisfying the court by way of affidavit delivered 5 days before the date on which the summary judgment application is to be heard, which would in the present instance have been 4 August 2023, dealing with its defenses as set out in their plea, and contending that although said plea was served, it had yet to be filed, and incorporate this purported defense of non-compliance with the rules therein.

57 On the strength of the Rule 30A notice, the respondents seek the summary judgment not to be entertained, and to be struck from the roll. Thereby allowing the 10days for the applicant to cure the complaint. This in my view would be an over technical approach in the present circumstances. The applicant position is clear they acted upon the received special plea and plea of the respondents. Other than causing a delay in the adjudication of the summary judgment it would serve no purpose to strike the matter from the roll. The summary judgment is thus properly before court. Any notion otherwise advanced by the respondents is ill conceived and constitutes an abuse of the remedy provided for in Rule 30A.

Affidavit resisting summary judgment

58 It is common cause that the respondents did not file an affidavit resisting summary judgment as provided for in Rule 32(3)(b). In the circumstances the applicant’s failure to comply with Rule 32(3) ought to be condoned before it can be regarded that the respondents have filed an affidavit resisting summary judgment.[14]

59 On a generous reading of the respondents’ affidavit, they attribute a single paragraph to the issue of condonation. Therein the respondents persist that the affidavit is not late and contend that for was far as it might be late, the affidavit ought to be accepted, as the applicant’s summary judgment application is not before court and therefore a nullity. Having found that the summary judgment application is indeed before court, the affidavit falls short of setting out a proper basis for condonation. Other than relying on the ostensible non-compliance of the applicant, the respondents’ make no attempt to explain their failure to timeously file the affidavit considering that they were well aware of the summary judgment application for 30 court days before the hearing but took no steps to raise that which they seek to do now, or timeously file their affidavit resisting summary judgment.

60 The affidavit further does not deal with any of the purported defenses raised in the plea, save for denying that the respondents do not have a bona fide defense to the applicant’s claim, and contending that same would be amplified by a notice of amendment which is in the process of being prepared. To date no such amendment has been delivered

61 The respondents are not entitled to condonation for the belated filing of the affidavit. There is thus strictly speaking no affidavit before court and the matter is unopposed.

Summary Judgment application

62 Notwithstanding the above finding, on the strength of the sui generis nature of a summary judgment application and that set out above in this respect the summary judgment application will be consider by having regard that which was pleaded in the special plea and plead of the respondents, together with the affidavit resisting summary judgment.

63 In the respondents’ special plea its pleaded that the surety agreements relied on by the applicant does not comply with the General Law Amendment Act, 50 of 1956, as the nature and amount of the principal debt are not capable of ascertainment by reference to the provisions of the deed of suretyship.

64 It is contended on behalf of the applicant in its affidavit supporting summary judgment that the respondents concluded suretyships agreements in consideration of any indebtedness incurred or to be incurred by the first respondent (principal debtor) in favour of the applicant. They bound themselves jointly and severally as sureties and co-principal debtors in solidum for the repayment on demand of all amounts which the first respondent (principal debtor) may now or at any time in the future owe the applicant or the applicant’s successor in title or assigns, provided that the total amount recoverable from the third respondent shall not exceed in aggregate the sum of R4.6 million plus interest, discount commission, commission, legal cost on attorney-and-client scale and all other necessary and usual charges and expenses. Similarly, in respect of the fifth respondent, said surety was limited to R1.2 million plus interest, discount commission, commission, legal costs on attorney-and-client scale and all other necessary and usual charges and expenses.

65 The conclusion of these surety agreements is common cause, as is the indebtedness of the first respondent, as reflected in the undisputed certificates of balance. It is further common cause that the first respondent had breached the loan agreements with the applicant.

66 Section 6 of the General Law Amendment Act (supra) provides that no contract of surety entered into after the commencement of the Act will be valid, unless the terms thereof are embodied in a written document signed by or on behalf of the surety.

67 Clause 6 of the suretyship agreements set out the nature and amount of the obligations in terms of the surety agreements, as well as the applicable interest rate, will be determined and proven by a certificate or any written evidence purporting to have been signed by a Nedbank manager whose capacity or authority does not have to be proven. Further, that unless the contrary was proven, the certificate will on mere production thereof be binding and prima facie proof of the content thereof, and of the fact that the amount is due and payable. The certificate will be valid as a liquid document (alternatively proof of a liquid amount) in any competent court or for any other purpose.

68 The respondents further contend that the deeds of suretyship may not be supplemented by incorporation of another document (such as the certificate of balance) or admissible extrinsic evidence in order to comply with the statutory requirements of the General Law Amendment Act. Further, that the applicant cannot place reliance on the main agreements read with the certificates of balance, as the suretyship agreements contain a whole agreement clause, thus the parole evidence rule does not find application.

69 It is contended on behalf of the applicant that the sureties relied on are limited sureties the limitation being clearly set out. There is thus no uncertainty as to the maximum amount that the sureties can be held responsible for. Further, the principal debt is determined by the certificate of balance or the certificate of debt being prima facie proof of the indebtedness of the respondents as agreed to in the surety agreement, there is thus no reliance on further document which has not specifically been agreed upon. Consequentially there can be no confusion, and there is no non-compliance as contended by the respondents. The wording of the surety agreements are clear, in that the sureties bound themselves for the repayment on demand of all amounts which the first respondent may now or at any time thereafter owe the applicant. Yet same stands to be limited to the respective maximum amounts of the sureties.

70 The formulation of the suretyship agreements relied on by the applicant cannot be regarded as foreign or new. Such clauses have been widely used and enforced before and after the enactment of the General Law Amendment Act. There is nothing open-ended about that standard provision. The sureties stand surety for all debts that the first respondent may now or in the future owe to the applicant. That wording is clear and enforceable. For as long as anything is owing, the surety has an accessory obligation to the creditor. This view was fortified by the Supreme Court of Appeal in Sapirstin and Others v Anglo African Shipping Co SA Ltd[15] where the suretyship related to ‘all sums of money which the debtor may have in the past owed or may presently or in the future owe or any cause of indebtedness whatsoever’. In said matter the court found that the suretyship in essence amounted to a promise by each of the sureties to the creditor to guarantee any indebtedness which the debtor may incur towards the creditor, and judgment was granted in favour of the creditor.

71 In Swift Air Freight CC v Singh[16] the court considered a suretyship for the due, proper and faithful performance by the debtor of the conditions, stipulations and obligations arising from various transactions between the creditor and the debtor. In that matter it was argued on behalf of the surety that the suretyship was unenforceable by virtue of the General Law Amendment Act, because ‘various transactions’ could mean some transactions and not others, or different and unspecified transactions, but not all transactions. The court held that the expression ‘various transactions’ must be taken to mean all transaction even though they may be or are of different classes. The intention of the creditor was to cast the net as wide as possible. The court held that the suretyship did not offend against the provision of Section 6 of the General Law Amendment Act. Further, the provision in a deed of suretyship that ‘the indebtedness of the said debtor shall at any time be determined and proved by a written certificate and such certificate shall be binding upon me and be conclusive proof of the amount of the indebtedness ’ does not oust the court’s jurisdiction under the deed of suretyship, nor can it be regarded to be contra bonis mores. In Nedbank Ltd v Van der Berg and Others[17] the court held that such a provision provided incontrovertible proof of the amount of the indebtedness, and no evidence could be led to contradict it.[18]

72 The Supreme Court of Appeal in Rossouw v First Rand Bank Ltd[19] held that in regard to the High Court practice under Rule 32(4), that a certificate of balance handed in at a hearing, performs a useful function and is not to be hit by the provision of Rule 32(4). In the present matter the certificates of balance were not handed in, but formed part of the summary judgment application. So was it part of the summons. In turn, it was also not disputed.

73 Accordingly, this purported defense is not good in law, nor a bona fide defence as contemplated by Ruel 32. The suretyship agreements bemoaned was specifically limited in re the amount and secondly the exact amount would be proved admissibly so by the admitted certificates of balance and lastly the nature of the indebtedness is expressly and acceptably set out.

74 The respondents further allege that they did not receiving the letters of demand sent to them by way of registered mail. Clause 20 of the suretyship agreements provide that the applicant must give legal notice to the sureties at the address set out in clause 1 of such agreements, and further that the notice, which is required to be served on the sureties, will have been properly served when it has either been delivered to the surety, or sent to the surety by registered mail to its last known address.

75 The notice of breach was delivered to every known address of the first- and fifth respondents. This the applicant proved by annexing copies of the letters of demand, as well as the registered mail slips and track-and-trace reports. These reports not only confirm postage of the registered mailed letters, but confirms that the first notifications had gone out to the recipients. The method of delivery was specifically identified in clause 20, and the respondents did not elect a different method or address for delivery.

76 In Rossouw (supra) the court dealt with the sending and delivery of a statutory Section 129 notice in terms of the National Credit Act, 34 of 2008.

Although said Act is not applicable in the present matter, the principle set out in that case is equally applicable when regard is had to the fact that the court found that delivery elected to take place through registered mail, is regarded as proper delivery.

Conclusion

77 No challenge was raised to the remaining merits of the applicant’s claim but for the in limine and compliance defenses dealt with above. For the reasons set out above, the respondents have no bona fide defenses to the applicant’s claim. The purported defenses and the manner in which they were raised are not issues for trial, nor were they genuinely raised.

78 But for the applicant’s prayer for perfecting of the notarial general bond: B[...], the applicant is entitled to the relief sought.

79 The registration of a general notarial bond over all the moveable property of a debtor does not entitle the creditor (the applicant herein) to a real right of security in the property. A creditor will only obtain a real right upon perfecting of the general notarial bond. The perfection of general notarial bond entails two things, one, a successful application for attachment of such property, and secondly, an actual possession of the property to be obtained via attachment by the sheriff of the high court. Aforementioned amounts to nothing else than delivery of moveable property. For this reason, such relief is competent in terms of summary judgment proceedings.

80 However, in the present matter it was made abundantly clear that the applicant only applies for summary judgment against the third- and fifth respondents. The order wherein the applicant seeks this court to effect to the general notarial bond is however directed at the moveable property of the first respondent, the general notarial bond being registered on similar terms. Therefore, said relief in my view is not competent in respect of the current proceedings, where summary judgment has been limited to relief against the aforementioned two respondents.

Court order 11 August 2023

81 It is necessary to deal with an ancillary issue, which arose from the court order granted on 11 August 2023. More particularly, paragraph 5 thereof.

82 As quoted herein above, Advocate Kgotso Njtana was ordered to file an affidavit advancing reasons why his conduct of failing to appear in circumstances where he had been briefed, should not be referred to the Legal Practice Council and relevant Society of Advocates for investigation as possible professional misconduct. Advocate Ntjana duly complied and filed said affidavit, wherein he confirms that he was indeed briefed, but struggled to log on due to network issues at 10h00. He informed his instructing attorney of his situation, and confirmed the request that the matter stand down after lunch. According to him, the fact that the matter was only stood down until the end of the roll, and therefore called at 12h00, was not communicated to him by his instructing attorney. This is confirmed by an affidavit deposed to by Ms. Makhetha, confirming that she is a practicing attorney and senior associate of Des Naidoo and Associate Attorneys.

83 Although the affidavit placed before court is rather scant and lack specificity, it is accepted that absent knowledge of the fact that the matter was indeed not stood down until after lunch, but recalled twice, in the latter instance being at 12h00, such conduct is excusable and does not justify a referral as foreshadowed in paragraph 5 of the order dated 11 August 2023.

84 It should however be reiterated that it is expected of counsel who is briefed in a matter, and who has the privilege of joining the proceedings virtually, to ensure that he or she is properly equipped to log in to said virtual hearing at the time required. Furthermore, that a request to stand a matter down remains an indulgence. The position is no different had the matter been heard in open court, and counsel found himself or herself caught up in traffic. There is an obligation on counsel to take all steps necessary to ensure that they appear at the time when a matter is called and should cater for unexpected events such as traffic, or poor connection.

Costs

85 What remains to be considered is the issue of costs. In the present matter, and considering the conduct foreshadowed in that set out herein above, an order for attorney-and-client costs is justified. Said order is further justified on the basis of the provision and the specific agreement to that extent, set out in the respective agreements relied on by the applicant.

86 It is for these reasons that the cost order in paragraph 2 above was granted.

DATE OF REASONS: 12 December 2023

FOR THE APPLICANT: Adv Van den Bergh Instructed by Stegmanns Inc

E-mail: tracey@stegmanns.co.za

FOR THE RESPONDENTS: Mr D Naidoo

Dez Naidoo and Associates

E-mail: dnattorneys@gmail.com

[1] Geyser v Nedbank Ltd and Others: In re Nedbank Ltd v Geyser [2006] ZAGPHC 50; 2006 (4) SA 544 (W) at 546D to 547E-F [2] Zhonjy Development and Engineering Co Ltd v Kamoto Copper Co Sarl 2015 (1) SA 345 (SCA) at par [50] [3] Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A) at 331-332 & 336-337 [4] Botha v Andrade [2008] ZASCA 120; 2009 (1) SA 259 (SCA) at 264I-265A [5] (279/2020) [2021] ZASCA 67 (3 June 2021) [6] Multi-links (supra) at par [13]: Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at par [11] [7] Standard Bank of South Africa Ltd and Others v Thobejane and Others 2021 (3) All SA 812 (SCA) [8] Rule 32(3)(a) [9] Rule 32(3)(b) [10] Where ex facie the document upon which the claim is founded there appears a defect in the cause of action, the court may refuse to enter summary judgment whether or not the defendant has filed an affidavit to oppose it (Transvaal Spice Works and ButcheryRequisites (Pty) Ltd v Conpen Holdings (Pty) Ltd 1959 (2) SA 198 (W) at 200; and see Geyer v Geyer’s Transport Services (Pty) Ltd 1973 (1) SA 105 (T)). [11] It is however good practice to give notice of same be it in correspondence [12] Bank van Oranje-Vrystaat Bpk v OVS Kleiwerke Edms Bpk 1976 (3) SA 804 (O) [13] Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) at 31F–G [14] Meloney’s Eye Property BK v Bloemfontein Board Nominees BPK 1995 (3) SA 249 (O) [15] 1978 (4) SA 1 (A) [16] 1993 (1) SA 454 (D) [17] 1987 (3) SA 449 (W) [18] The dicta in Astra Furnisher (Pty) Ltd v Arends and Another 1973 (1) SA 446 at 450A-D was applied [19] 2010 (6) SA 439 (SCA) at 454C

[1] Geyser v Nedbank Ltd and Others: In re Nedbank Ltd v Geyser [2006] ZAGPHC 50; 2006 (4) SA 544 (W) at 546D to 547E-F

[2] Zhonjy Development and Engineering Co Ltd v Kamoto Copper Co Sarl 2015 (1) SA 345 (SCA) at par [50]

[3] Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A) at 331-332 & 336-337

[4] Botha v Andrade [2008] ZASCA 120; 2009 (1) SA 259 (SCA) at 264I-265A

[5] (279/2020) [2021] ZASCA 67 (3 June 2021)

[6] Multi-links (supra) at par [13]: Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at par [11]

[7] Standard Bank of South Africa Ltd and Others v Thobejane and Others 2021 (3) All SA 812 (SCA)

[8] Rule 32(3)(a)

[9] Rule 32(3)(b)

[10] Where ex facie the document upon which the claim is founded there appears a defect in the cause of action, the court may refuse to enter summary judgment whether or not the defendant has filed an affidavit to oppose it (Transvaal Spice Works and ButcheryRequisites (Pty) Ltd v Conpen Holdings (Pty) Ltd 1959 (2) SA 198 (W) at 200; and see Geyer v Geyer’s Transport Services (Pty) Ltd 1973 (1) SA 105 (T)).

[11] It is however good practice to give notice of same be it in correspondence

[12] Bank van Oranje-Vrystaat Bpk v OVS Kleiwerke Edms Bpk 1976 (3) SA 804 (O)

[13] Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) at 31F–G

[14] Meloney’s Eye Property BK v Bloemfontein Board Nominees BPK 1995 (3) SA 249 (O)

[15] 1978 (4) SA 1 (A)

[16] 1993 (1) SA 454 (D)

[17] 1987 (3) SA 449 (W)

[18] The dicta in Astra Furnisher (Pty) Ltd v Arends and Another 1973 (1) SA 446 at 450A-D was applied

[19] 2010 (6) SA 439 (SCA) at 454C