Firstrand Bank Limited v Mica Foods CC and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mngadi J
• Judgment Date: 23 August 2023
• Citation: 2023 JDR 3188 (KZP)
• Hearing Date: 03 August 2023
• Docket Number: 1465/2022P
• Court: KwaZulu-Natal Division, Pietermaritzburg

Mngadi J:

[1]

The plaintiff applies for summary judgment. The two defendants oppose the application.

[2]

The plaintiff is FirstRand Bank Limited t/a First National Bank a company duly registered and incorporated in accordance with the laws of the Republic of South Africa. The first defendant is Micca Foods CC a close corporation duly registered and incorporated in terms of the laws of the Republic of South Africa. The second defendant is Meshach Pillay an adult male person.

[3]

On 7 February 2022 the plaintiff instituted action against the first and second defendants. The plaintiff claimed, firstly, that on 8 November 2019 it entered into an overdraft agreement with first defendant extending an overdraft facility on a revolving basis with a limit of R710 633.00 incurring interest on outstanding balance charged at prime plus 8%. The repayment of the overdraft required upon demand. The second defendant as security for the first defendant’s indebtedness on the overdraft facility entered with the plaintiff into a suretyship agreement on usual terms.

[4]

The plaintiff claimed that the first defendant in terms of the overdraft facility became indebted to the plaintiff in the sum of R735 059.39 plus interest from 1 November 2021 to date of final payment, which amount has become due and payable.

[5]

Secondly, the plaintiff claimed that on 14 August 2018 the plaintiff concluded a revolving loan agreement with the first defendant. It provided that plaintiff would lend in advance to the first defendant an amount of R300 000.00 incurring interest on outstanding balance at prime rate plus 8.5%. The loan repayable in monthly instalments of R7 928.00. The second defendant as security for the first defendant’s obligation in the loan agreement concluded with the plaintiff a suretyship agreement.

2023 JDR 3188 p4

Mngadi J

The plaintiff claimed that the first defendant breached the terms of the loan agreement by failing to pay due monthly instalments resulting in an indebtedness in the amount of R158 554.41 plus interest.

[6]

The plaintiff in the summons attached the overdraft facility agreement, the revolving loan agreement and the suretyship agreements. Further, the plaintiff to prove balances outstanding as stipulated in the agreements attached certificates of balance and notices of default to both defendants dated 10 November 2021.

[7]

The summons was served and on 17 March 2022 the defendants filed a notice to defend. On 9 June 2022 the defendants filed a plea. On 29 June 2022 the plaintiff lodged an application for summary judgment. On 17 August 2022 the plaintiff filed a supplementary affidavit replacing incorrect annexures attached to the affidavit in support of the application for summary judgment.

[8]

The defendants in an affidavit opposing the summary judgment denied that first defendant entered into a business overdraft facility agreement attached to the summons, they denied that a loan agreement was concluded as alleged in the summons, and they denied that suretyship agreements were concluded. The deponent stated: “I am of the view that such agreements were not concluded and to my best...