Rossouw NO and Others v First Rand Bank Limited t/a RMB Private Bank (A757/2015) [2017] ZAGPPHC 688 (26 October 2017)

Rossouw NO and Others v First Rand Bank Limited t/a RMB Private Bank (A757/2015) [2017] ZAGPPHC 688 (26 October 2017)

The respondent failed to prove a breach or default by the appellants as required by clause 15.3 of the Facility Agreement. The notices relied upon by the respondent were issued in 2012, seventeen months before the alleged breach in February 2014, and related to a different cause of action. After the 2012 notice, the appellants cured the default by payment and continued making regular instalments, which were accepted by the respondent. No further notice was issued after the alleged 2014 breach to place the appellants on terms, as required by the agreement. The respondent did not withdraw or terminate the facility, and the appellants were ahead with their payments at the time of the...

Citation
[2017] ZAGPPHC 688
Parties
Appellant: Allewyn Burger Rossouw N.O.; Appellant: Lizette Rossouw N.O.; Appellant: Nico Kruger N.O.; Appellant: Blue Anvil Trading (Pty) Limited; Respondent: First Rand Bank Limited t/a RMB Private Bank
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 October 2017
Case Number
A757/2015
Procedural Posture
Civil Appeal / Appeal From Motion Proceedings; Judgment of Court a Quo Set Aside
Outcome
Appeal upheld; application dismissed with costs.
Judges
W.R.C. Prinsloo, L.M. Molopa-Sethosa, P.M. Mabuse
Legal Topics
Facility Agreement Breach, Acceleration Clause, Suretyship Liability, Notice of Default, Doctrine of Election, Onus of Proof
Banking and Finance Civil Procedure Commercial and Corporate Facility Agreement Breach Acceleration Clause Suretyship Liability Notice of Default Doctrine of Election +1 more

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Parties

Allewyn Burger Rossouw N.O.

Appellant

Lizette Rossouw N.O.

Appellant

Nico Kruger N.O.

Appellant

Blue Anvil Trading (Pty) Limited

Appellant

First Rand Bank Limited t/a RMB Private Bank

Respondent

Procedural Posture

Civil Appeal / Appeal From Motion Proceedings; Judgment of Court a Quo Set Aside

Legal Issues

  1. 1 Did the respondent bank prove a breach or default by the appellants as required by clause 15.3 of the Facility Agreement?
  2. 2 Was the respondent entitled to accelerate and claim the full outstanding balance without issuing a proper notice after the alleged 2014 breach?
  3. 3 Did the respondent comply with the contractual procedure for cancellation and acceleration?

Ratio Decidendi

The respondent failed to prove a breach or default by the appellants as required by clause 15.3 of the Facility Agreement. The notices relied upon by the respondent were issued in 2012, seventeen months before the alleged breach in February 2014, and related to a different cause of action. After the 2012 notice, the appellants cured the default by payment and continued making regular instalments, which were accepted by the respondent. No further notice was issued after the alleged 2014 breach to place the appellants on terms, as required by the agreement. The respondent did not withdraw or terminate the facility, and the appellants were ahead with their payments at the time of the...

Court Disposition

Appeal upheld; application dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with: 'The application is dismissed with costs.'