Court name
High Court
Case name
Nedbank Namibia Ltd v Di Savino
Media neutral citation
[2010] NAHC 94

















CASE
NO.: I 1545/2009



IN
THE HIGH COURT OF NAMIBIA











In
the matter between:











NEDBANK
NAMIBIA LIMITED APPLICANT











and











ANTONIO
DI SAVINO RESPONDENT















CORAM: NAMANDJE
AJ











Heard
on: 20 September 2010







Delivered
on: 24 September 2010


















JUDGMENT:
APPLICATION FOR SUMMARY JUDGMENT














NAMANDJE,
AJ.:
[1] The applicant is a duly registered bank which as
part of its business inter alia lends money to its customers
on agreed terms. It issued summons against the respondent and two
other parties as more clearer later in this Judgment.







[2] During
2005 the respondent who was one of the two members of a Close
Corporation called Tile and Sanitary Ware CC “hereinafter
called the Close Corporation
together with one
Barend van den Berg “hereinafter van den Berg
bound themselves in favour of the applicant as surety and
co-principal debtor in solidum jointly and severally for the
due payment to the applicant of all monies which the Close
Corporation may from time to time owe the applicant from whatsoever
cause and howsoever arising.







[3] The
relevant deed of suretyship is signed by the two sureties at the
first and the last of its four pages where provision is made for
their signatures. The second and third pages do not make provision
for signatures by the sureties and are thus not signed.







[4] The
Deed of Suretyship provides under clause 5 and 6 as follows:







5. I/We
renounce the benefits of excussion and division,
error in calculation, cession of action, that no money was paid over
and agree and declare that this suretyship is to be in addition to
and without prejudice to any other security or suretyship (including
any suretyship signed by the undersigned) now held or hereafter to be
held from or on behalf of the Debtor and is to be a continuing
security for the Indebtedness notwithstanding any intermediate
settlement of account and notwithstanding the death or legal
disability of one or more of the undersigned,
until receipt
by you of notice in writing determining same (accompanied by proof of
delivery of a copy of such notice addressed to the Debtor by the
determining surety/ies advising the Debtor of termination of such
suretyship) and until the sum or sums due or to become due (whether
contingently or otherwise) at the date of receipt of such notice
shall have been paid. Notwithstanding termination as aforesaid as to
one or more of the undersigned, this suretyship is to remain in force
as continuing covering security as to the other or others
.







6. Upon
termination of this suretyship by notice in writing by the
undersigned as set out above you may in your entire discretion
continue any then existing facility or open a new facility with the
Debtor and any moneys paid in respect of such facility/ies by or on
behalf of the Debtor
shall not affect your right to recover
from the undersigned the full indebtedness of the Debtor to you at
the date of such termination, subject to the limitation in amount
aforementioned
.







6.1 I/We
acknowledge that I/We shall only be released from my/our
obligations hereunder
:







6.1.1 upon
written notice from me/us to the Bank or from my/our executors,
trustees or other legal representatives, as the case may be,
requesting the Bank to release me/us from this suretyship
;
and







6.1.2 the
Bank acknowledge in writing receipt of my written request
;







6.1.3 and
the Bank in writing advised me of the amount then still outstanding
and due by the principal Debtor, for which amount I acknowledge that
I shall remain liable notwithstanding such notice of termination
until same has been paid in full by either myself and/or the Debtor
which shall only be terminated on written notice from the Bank to
me/us acknowledging that such suretyship has been terminated, but
such termination shall only come into effect when the sum or sums
already due or accruing at the date of receipt of such notice
together with interest and costs thereon have been paid
.”
(Own emphasis)







[5] About
three years after the respondent and van den Berg bound themselves as
surety and co-principal debtors in
solidum
for due payment of the Close Corporation’s debts to the
applicant, the Close Corporation and the applicant concluded terms of
a banking overdraft facility.







[6] By
August 2008 the applicant had availed funds to the Close Corporation
through and in terms of the afore stated overdraft facility as well
as further funds in terms of existing business loan agreements.
1







[7] During
April 2009 the applicant caused summons to be issued against the
Close Corporation, van den Berg and the Respondent in which it
claimed sums of money as per paragraphs 8, 9 and 10 hereof, under
three claims, jointly and severally against the three afore stated
defendants.







[8] Under
the first claim the applicant claimed the sum of N$1,997,196.73 plus
compound interest at the rate of 20.4% per annum. This amount was due
and payable in respect of monies lent to the Close Corporation in
terms of the overdraft facility.







[9] The
applicant further, under the second claim, claimed the sum of
N$929,613.75 plus compound interest at the rate of 20.4% per annum.
This claim arises from money lent and advanced in terms of a business
loan to the Close Corporation.







[10] A
third claim related to an amount of N$1,934,302.96 plus compound
interest at the rate of 20.4% per annum in terms of a further
business loan agreement. The amounts claimed in the three claims are
alleged, in the applicant’s particulars of claim, to be due
owing and payable as contemplated in terms of the terms of the
banking facility and the two loan agreements.







[11] After
service of the summons upon the three defendants, they all filed
notices of intention to defend the applicant’s action. However
judgments have since been obtained against the Close Corporation and
van den Berg. The proceedings between the applicant and the Close
Corporation and van den Berg have therefore been concluded by the
time this application was heard. The applicant is proceeding against
the respondent who was cited in the summons as the third defendant on
the ground that, in terms of the deed of suretyship the three
defendants’
2
are liable jointly and severally, one paying the other to be absolved
for the debts incurred by the Close Corporation in favour of the
applicant. The amounts of money claimed are all alleged to have
become payable, due and owing from April 2009.







[12] After
the respondent filed a notice of intention to defend the applicant
filed an application for a summary judgment in terms of the Rules of
the High Court. The respondent did not opt for the procedure provided
for in terms of Rule 32(3)(a).
3
Instead he filed an opposing affidavit as provided for in terms of
Rule 32(3)(b) which states as follows:







32(3) Upon
the hearing of an application for summary judgment the defendant may-







(a) …







(b) satisfy
the court by affidavit (which shall be delivered before noon on the
court day but one preceding the day on which the application is to be
heard) or with the leave of the court by oral evidence of himself or
herself or of any other person who can swear positively to the fact
that he or she has a bona fide defence to the action, and such
affidavit or evidence
shall disclose fully the
nature and grounds of the
defence and the
material facts relied upon therefor.
(Own emphasis)







[13] In
terms of Rule 32(3)(b) a respondent filing an opposing affidavit in a
summary judgment application is required to disclose fully (1) the
nature and grounds of the defence and (2) the material facts relied
upon therefor. In my opinion for facts alleged by a respondent in a
summary judgment application to qualify as a
bona
fide
defence
as contemplated in terms of Rule 32(3)(b), the respondent is required
not only to disclose the grounds and nature thereof but facts that if
looked at against the plaintiff’s claim would amount to a
defence in law and he is not required to merely formulate the
dispute between the parties.
4







[14] The
respondent filed an opposing affidavit. In his bid to address the
requirements of Rule 32(3)(b), he stated, under paragraph 4 of his
opposing affidavit in relation to the applicant’s first claim,
that:
5







I
admit that I have
signed pages 1 and page 4 of a
Deed of Suretyship with Plaintiff on the 27
th
of May 2005 annexed to the Particulars of Claim of the Combined
Summons marked as Annexure “A”. However I have neither
signed nor initialled
pages 2 and 3 of Annexure “A”
and therefore the document signed by me was
INCOMPLETE when
delivered to me
. The witnesses also did not sign in my
presence on page 4 thereof
.” (Own emphasis)







[15]
The respondent further alleges that he has since sold his membership
to van den Berg. This does not, in any measure, amount to a
disclosure of a nature and grounds of the respondent’s defence.
His liability as a surety and a co-principal debtor is not dependent
on him continuing being a member of the Close Corporation. The
respondent therefore did not make out an arguable and triable case in
this respect at all. See
Mushimba
v Autogas Namibia Pty Ltd.







[16] While
the respondent appears to express doubt as to whether pages 2 and 3
of the deed of suretyship
6
formed part of the deed suretyship at the time of signing or not, he
does not make
bona
fide
and
positive averments that such pages did not form part of the deed of
suretyship at the relevant time. In my opinion, he is simply
implausibly implying that as the two middle pages do not bear his
signature that they were not part of the deed of suretyship he
signed. I find that there is no genuine and serious dispute that
pages 2 and 3 formed part of the deed of suretyship the respondent
signed. The deed of suretyship does not provide that its validity and
the respondent’s liability for due performance of the Close
Corporation’s obligation are subject to each page of the deal
of suretyship being signed and initialled by the surety. It therefore
follows that by affixing his signature at the first and last pages of
the deed of suretyship, the respondent thereby unequivocally
expressed his intention to be a surety and a co-principal debtor for
the due performance by the Close Corporation of its obligations
towards the applicant.







[17] See
Christie The Law of Contract in South Africa 6 ed at page 103 where
he stated-







-“….the
function of a signature is to certify that the writing to which it
pertains accords with the intention of the signatory. It conveys an
attestation by the person signing of his approval and authority for
what is contained in the documents and that it emanates from him.”







[18] See
also Sneech v Hill Kaplan Scott and Partners, 1981 (3) SA 332
(A) where the Court stated that:







­This
Court referred to that case in Nelson v Hodgetts Timbers (East
London) (Pty) Ltd
1973
(3) SA 37 (A)
and
said at 45:







"As
the problem concerns the intention of the parties to be inferred from
the words used in the deed of suretyship, it may be as well to
mention the elementary principle expressed by an English Judge,
quoted in Steenkamp v Webster
1955
(1) SA 524 (A)
at
530, that







'when
the signature comes at the end you apply it to everything which
occurs throughout the contract'."




(See
MELLISH LJ in Gadd v Houghton 1 Ex D 357 at 360.) This elementary
principle applies to the facts of the case under consideration.




By
signing his name at the foot of annexure A the appellant entered into
a second contract, the particulars of which are to be found in the
entire document
.” (Own emphasis)







[19] The
attempt by the respondent to escape liability on the basis of the
fact that he did not sign the two middle pages is therefore rejected
as it does not amount to a
bona
fide
defence.







[20] In
respect of the second claim the respondent simply alleged that the
loan relating thereto “
has
almost been repaid
”.
In my opinion such statement does not constitute a
bona
fide
defence.
Apart from such statement being content free, it is the respondent
that bears the onus of proving the extent of the repayment he
alleged.
7
Should the respondent have stated, how much of the amount claimed by
the applicant has since been repaid and what amount remained
outstanding, the Court may then have, in such circumstances if
satisfied, entered judgment for the applicant only in the amount
admitted as owing and grant leave to defend to the respondent in
respect of the balance as contemplated in terms of Rule 32.(6)(b)(ii)
of the High Court.







[21] The
respondent’s allegations meant to make out a defence in respect
of the third claim is, according to his affidavit, the fact that he
did not sign the relevant loan contracts between the applicant and
the Close Corporation and that he has since transferred his
membership in the Close Corporation to van den Berg. Notably, the
respondent is not denying that the Close Corporation is not liable on
account of him not having signed the relevant loan contracts or that
the loan contracts are unforeseeable for want of his signature. The
respondent in terms of the deed of suretyship, subject to clauses 5
and 6 thereof, is liable as a surety and a co-principal debtor in
solidum
as and when the Close Corporation is liable to pay its debts to the
applicant. It is irrelevant how the debts were increased. Even if the
respondent were to have properly terminated the suretyship, which I
find he did not properly allege, he would still have been jointly and
severally liable for all the accrued indebtedness of the Close
Corporation to the applicant up to the date of termination of
suretyship. The respondent does not allege that he complied with the
terms of the deed of suretyship pertaining to termination. He bears
the onus in this respect. See
Amlers
Precedents of Pleadings, Harms

6
th
Ed at p 328.







[22] The
respondent further alleges under paragraph 6.1 of his opposing
affidavit as follows:





Plaintiff
furthermore acted totally in conflict with the agreements –
Annexures “B” (dated 29/8/08) and “D” (dated
22/12/08) to my prejudice without consulting me and having signed by
me and therefore I am in addition released from liability under the
“suretyship”, which I cannot be held liable for
anymore.”







[22] Despite
this Court, in the interest of justice and fairness, resorting to a
meticulous scrutiny of the respondent’s opposing affidavit
vis-a-vis the applicant’s case as stated in the particulars of
claim it did not find the above statements to amount to a bona
fide
defence against the three claims in any degree of proximity.
Firstly there are no allegations that termination terms of the deed
of suretyship were complied with, secondly no content has been given
to the statement that the applicant acted “totally in
conflict of the loan agreements”
and to the prejudice of
the respondent. Because of the respondent’s audacity of belief,
it appears, that such sketchy and vague allegations could be
sufficient to meet the requirements of the relevant Rule, he
resultantly did not make any serious effort to address the
requirements of the law on opposing summary judgment applications in
our law.







[23] The
first respondent’s last attempt at complying with the
requirement of Rule 32(3)(b) is the statement that he has caused his
signing powers on the Close Corporation banking affairs to be
cancelled. Surely that, notwithstanding he remains liable. He did
not set out any legal ground why he would be released from his surety
obligations on account of cancellation of banking signing powers. A
summary judgment application is limited to four certain claims in
terms of rule 32(1). Not only is it aimed at achieving certain
limited aims expeditiously – it is also aimed at achieving
justice for a claimant who is confronted with a notice of intention
to defend filed solely to delay the matter when in fact and law the
defendant has no defence to the claim. In exercising its discretion
whether to enter summary judgment for the applicant or not, the court
must always be aware of the fact that a token opposition made with no
bona fide intention to defend a claim and solely filed to
cause delays bears all the hallmark of injustice as it has effect of
prolonging, with attendant expensive implications, a trial. Summary
Judgment application remains one of the most speedier procedure to
assist a bona fide and honest creditor claiming relief against an
illusive debtor. In commerce, it is thus an effective mode of
obtaining relief in a less expensive and expeditious manner.







[24] This
Court is alive to the fact that the respondent’s opposing
affidavit should not be assessed with the precision required in a
plea. See Summary Judgment, A Practical Guide, van Niekerk et
al
, service issue no 8, par 9.5.11. Further, the Court
should always adopt an accommodating approach seeing that entering a
summary judgment against a respondent at this stage may prove to be
harsh. However, where a defendant such as in this case only makes
statements that in substance do not disclose the nature and grounds
of his defence let alone facts relied upon the court is always likely
to exercise its discretion against him.















[25] This
Court being justified that the respondent has no bona fide defence
and that his notice of intention to defend was solely filed for
delaying purposes exercises its discretion in favour of entering a
summary judgment against the respondent. Accordingly in the result,
I make the following orders:







AD
CLAIM 1:








  1. Payment
    in the amount of N$1,997,196.73;



  2. Compound
    interest on the amount of N$1,997,196.73 at the rate of 20.4% per
    annum to be calculated from 1 May 2009 until date of payment;








AD
CLAIM 2:








  1. Payment
    of the amount of N$929,613.75;



  2. Compound
    interest on the amount of N$929,613.75 at the rate of 20.4% per
    annum to be calculated from 1 May 2009 until date of payment;








AD
CLAIM 3:




  1. Payment
    of the amount of N$1,934,302.96;



  2. Compound
    interest on the amount of N$1,934,302.96 at the rate of 20.4% per
    annum to be calculated from 1 May 2009 until date of payment;



  3. Cost
    of suit in respect of all claims;
















___________________________



NAMANDJE,
AJ.

















































































ON
BEHALF OF THE APPLICANT:



ADV
MOUTON



















INSTRUCTED
BY:



KOEP
& PARTNERS



























ON
BEHALF OF THE RESPONDENT:



MR
C BRANDT



















INSTRUCTED
BY:



CHRIST
BRANDT






















1
There were two loan agreements in respect of
which, the Close Corporation at the time of the institution of the
applicant’s claim, owed the applicant some amounts of money –
being the sum of money claimed in the second and third claims.




2
The Close Corporation, van den Berg and the
respondent.




3
Which is to give security to the applicant to the
satisfaction of the Registrar for any judgment including costs which
may be given.




4
The respondent is not required to prove prospects
of success but only facts that may disclose a
bona
fide
defence capable of fending off
the plaintiff’s claim if proved at trial. Whether he will
succeed at the trial or not, is not the Court’s concern at
this stage.




5
Indebtedness flowing from the banking facility
given to the Close Corporation.




6
The pages that do not make provision for a
signature and which pages the respondent implies may not have been
part of the deed of suretyship..




7
See South-West African Building Society and
Martin David Coetzee unreported judgment, full bench judgment,
delivered by this Court on the 1
st
of October 1999 pages 13 – 14 thereof.