Bonugli and Another v Standard Bank of South Africa Ltd

• Jurisdiction: South Africa

Bonugli and Another v Standard Bank of South Africa Ltd
2012 (5) SA 202 (SCA)

2012 (5) SA p202

Citation	2012 (5) SA 202 (SCA)
Case No	266/11; [2012] ZASCA 48
Court	Supreme Court of Appeal
Judge	Farlam JA, Cachalia JA, Malan JA, Wallis JA and Petse AJA
Heard	February 15, 2012
Judgment	March 30, 2012
Counsel	BJ Manca SC (with AM Smalberger) for the appellants.; AO Cook SC (with JA Babamia) for the respondent.

Flynote : Sleutelwoorde B

Jurisdiction — Submission — What constitutes — Peregrine defendant opposing summary judgment on merits without challenging jurisdiction — Defendant C sued in representative capacity on behalf of trust — Co-trustee setting out defence in detail in affidavit sworn with defendant's authority on trust's behalf — Conduct of defendant unequivocally amounting to submission to jurisdiction.

Appeal — To Supreme Court of Appeal — Heads of argument — Deficiencies in — Counsel failing to comply with rule requiring identification of portions of D record needed for determination of appeal — Will in future be met with adverse or punitive costs order — Supreme Court of Appeal Rules, rule 10A(a)(ix).

Headnote : Kopnota

Counsel involved in appeals to the SCA must observe the requirement in rule 10A(a)(ix) of the SCA rules, namely that heads of argument must be E accompanied by a note containing, inter alia, 'a list reflecting those parts of the record that, in the opinion of counsel, are necessary for the determination of the appeal'. The object of the rule is to spare judges from wasting their time in reading irrelevant matter, and it must be complied with in this spirit. Future transgressions will incur punitive or adverse costs orders. (Paragraphs [33] – [38] at 213D – 214F.)

F Mindful of the fact that all trustees must be joined in litigation concerning the affairs of a trust, the respondent bank had, in a high court application for summary judgment, cited the appellants, Mrs and Mr B, as trustees of the RC Trust. The appellants, alluding to the fact that Mr B was a peregrine of the Republic, contested the high court's jurisdiction to entertain the bank's claim against the trust. The bank for its part argued that Mr B had in his G representative capacity consented to the high court's jurisdiction by allowing Mrs B to oppose summary judgment on the merits without contesting jurisdiction. In response Mrs and Mr B argued that, since rule 32(3)(b) of the Uniform Rules did not require a defendant seeking to defeat an application for summary judgment to set out all available defences but merely to satisfy the court that there was a bona fide defence to the action, H it had not been necessary for them to have raised lack of jurisdiction.

Held: The bank's argument in respect of jurisdiction had to be upheld: Mr B had indeed, by electing to advance, in the opposing affidavit filed on his and the trust's behalf, facts which constituted a defence to the bank's claim, unequivocally submitted to the court's jurisdiction. Moreover, appellants' reliance on rule 32 was misplaced: rule 32, by requiring the defendant to set I out his defence, plainly assumed that the court already had jurisdiction. (Paragraphs [18] – [23] at 208F – 210E.)

Cases Considered

Annotations:

Case law

Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 (SCA) ([1998] 3 All SA 175): dictum in para [36] applied J

2012 (5) SA p203

Commissioner for Inland Revenue v Friedman and Others NNO 1993 (1) SA 353 (A): A referred to

Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd 2005 (2) SA 522 (SCA): referred to

Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA) ([2004] 4 All SA 261): referred to B

Lupacchini NO and Another v Minister of Safety and Security 2010 (6) SA 457 (SCA): dictum in para [2] applied

MV Alina II (No 2): Transnet Ltd v Owner of MV Alina II 2011 (6) SA 206 (SCA): dictum in para [14] applied

Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A): referred to

Mediterranean Shipping Co v Speedwell Shipping Co Ltd and Another 1986 (4) SA 329 (D): dictum at 333E – 334A applied C

Minister of Health and Another v Maliszewski and Others 2000 (3) SA 1062 (SCA): dictum in paras [33] – [39] applied

Nieuwoudt and Another NNO v Vrystaat Mielies (Edms) Bpk 2004 (3) SA 486 (SCA) ([2004] 1 All SA 396): referred to

Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA): dictum in paras [28] – [29] applied D

Premier, Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) ([2000] 3 All SA 247): dictum in para [45] applied

Southern Cape Car Rentals CC t/a Budget Rent a Car v Braun 1998 (4) SA 1192 (SCA): dictum at 1195F – 1196C applied

Van Aardt v Galway 2012 (2) SA 312 (SCA): dictum in paras [34] – [38] applied. E

Case Information

Appeal against a decision in the Western Cape High Court, Cape Town (Veldhuizen J).

BJ Manca SC (with AM Smalberger) for the appellants. F

AO Cook SC (with JA Babamia) for the respondent.

Cur adv vult.

Postea (March 30). G

Order

1.

The appeal is upheld with costs, including the costs occasioned by the employment of two counsel, save that the costs in respect of the preparation, perusal and copying of the record shall not exceed 10% of the costs incurred in relation to those tasks. H

2.

The order of the trial court is set aside and the following order is substituted in its stead:

'Judgment is granted in favour of the plaintiff against the first defendant in her personal capacity and against the first and second defendants in their representative capacities jointly and severally, the one paying the other to be absolved, for: I

(a)

payment of the sum of R14 578 143;

(b)

interest on the sum of R14 578 143 at 15,5% per annum from the date of service of summons to date of payment;

(c)

costs of suit which shall include the costs occasioned by the employment of two counsel.' J

2012 (5) SA p204

Judgment

Wallis JA and Petse AJA (Farlam JA, Cachalia JA and Malan JA concurring): A

Introduction

[1] The respondent, the Standard Bank of South Africa Ltd (as plaintiff) B successfully sued the appellants (as defendants) in the Western Cape High Court for payment of the sum of R16 958 969 together with interest and costs of suit, inclusive of the costs occasioned by the employment of two counsel.

C [2] The first appellant, Beulah Evelyn Bonugli, was sued both in her personal capacity and in her representative capacity as a trustee of Rivonia Close Trust (RCT). The second appellant, Christopher Stephen Bonugli, was sued in his representative capacity as a trustee of RCT. In effect therefore the action was against Mrs Bonugli and RCT. The appeal to this court is with the leave of the court below.

D [3] The bank's action was founded on a deed of suretyship purporting to bind both Mrs Bonugli and RCT as sureties for the debts of Union Charter Trust (UCT) under four leases in respect of Pilatus PC12 aircraft. The leases and the suretyship were concluded on different dates in Johannesburg. Mrs Bonugli represented RCT in executing the deed of E suretyship. She also represented UCT in concluding the leases. In each instance she claimed to be authorised to do so by her fellow trustees. UCT's indebtedness, although not the amount thereof, was admitted. This is hardly surprising as UCT had been sequestrated by the bank in respect of that indebtedness.

F [4] Pursuant to its right in terms of the contracts the respondent recovered possession of the four aircraft in May 2006 and on various dates sold them. The amount of UCT's indebtedness in respect of each aircraft, save one, was agreed in the course of the trial. We will need to revert to that one when dealing with the question of quantum.

G [5] The deed of suretyship, described as a general guarantee, was executed on or about 22 April 1998. In terms of the guarantee RCT and the first appellant undertook liability, jointly and severally, as sureties and co-principal debtors in solidum with UCT for the due and faithful payment by UCT to the respondent of all sums of money then owing or H which might thereafter become owing in relation to any cause of indebtedness whatsoever, and acknowledged that any admission or acknowledgement of indebtedness by UCT would be binding upon them and that a certificate signed by a manager of the respondent, whose appointment need not be proved, as to the amount owing by UCT to the I respondent, would constitute prima facie proof of such indebtedness.

[6] Subsequent to the sequestration of UCT and shortly prior to the commencement of this action a number of certificates of indebtedness were issued by a manager employed by the bank, in terms of which various amounts were certified as due and owing to the respondent by J UCT. Although some time was spent in the trial over the validity of these

2012 (5) SA p205

Wallis JA and Petse AJA (Farlam JA, Cachalia JA and Malan JA concurring)

certificates the issues in that regard were largely overtaken by the A agreement on quantum and nothing in this appeal turns on them.

[7] The defences raised by Mrs Bonugli and RCT were:

(a)

Rectification, in that they claimed that the suretyship did not correctly reflect the common intention of the respondent and the B appellants, because it was only intended to guarantee UCT's obligations in terms of an earlier instalment sale agreement, which UCT concluded with the respondent on 22 April 1998, in respect of an aircraft with registration number BEB-180 (the BEB aircraft). In other words, notwithstanding the general terms of the guarantee, it was, so they contended, limited to a single transaction and inapplicable C to the four lease agreements giving rise to UCT's indebtedness to the bank.

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