Pitamber and Another v Bender and Another (643/2020) [2020] ZAFSHC 244 (9 December 2020)

Pitamber and Another v Bender and Another (643/2020) [2020] ZAFSHC 244 (9 December 2020)

The court found that the second plaintiff had sufficient personal knowledge of the facts, having been a shareholder and director of Blue Lounge Trading 50 (Pty) Ltd during the relevant period. The defendant's challenge to the validity of the suretyship based on signature formalities was rejected, as the law does not require a specific form of signature, and the initialling of all pages sufficed. The prescription defence was dismissed, as the debt was secured by a continuing mortgage bond, attracting a thirty-year prescription period. The defendant's other defences were found to be bad in law and did not raise triable issues. Accordingly, the plaintiffs were entitled to summary judgment.

Citation
[2020] ZAFSHC 244
Parties
Plaintiff: Kishoor Pitamber; Plaintiff: William Henry Bender; Defendant: Johannes Stephanus Bender; Defendant: The Standard Bank of South Africa Limited
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 December 2020
Case Number
643/2020
Procedural Posture
Summary Judgment Application / Judgment After Hearing Opposition to Summary Judgment
Outcome
Summary judgment granted in favour of the plaintiffs against the first defendant.
Judges
Mathebula
Legal Topics
Summary Judgment, Suretyship, Prescription Act, Mortgage Bond, Rectification of Contract, Liquidated Claim
Civil Procedure Banking and Finance Summary Judgment Suretyship Prescription Act Mortgage Bond Rectification of Contract Liquidated Claim

Case Brief

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Parties

Kishoor Pitamber

Plaintiff

William Henry Bender

Plaintiff

Johannes Stephanus Bender

Defendant

The Standard Bank of South Africa Limited

Defendant

Procedural Posture

Summary Judgment Application / Judgment After Hearing Opposition to Summary Judgment

Legal Issues

  1. 1 Whether the first defendant has a bona fide defence to the plaintiffs' claim for payment under the deed of suretyship.
  2. 2 Whether the deed of suretyship is valid and complies with statutory formalities.
  3. 3 Whether the debt claimed is subject to prescription and, if so, the applicable period.

Ratio Decidendi

The court found that the second plaintiff had sufficient personal knowledge of the facts, having been a shareholder and director of Blue Lounge Trading 50 (Pty) Ltd during the relevant period. The defendant's challenge to the validity of the suretyship based on signature formalities was rejected, as the law does not require a specific form of signature, and the initialling of all pages sufficed. The prescription defence was dismissed, as the debt was secured by a continuing mortgage bond, attracting a thirty-year prescription period. The defendant's other defences were found to be bad in law and did not raise triable issues. Accordingly, the plaintiffs were entitled to summary judgment.

Court Disposition

Summary judgment granted in favour of the plaintiffs against the first defendant.

Orders

  • The first defendant is ordered to pay the first plaintiff the amount of R240,223.85.
  • The first defendant is ordered to pay moratory interest on the above amount at 7% per annum a tempore morae.