Investec Bank Ltd v Bruyns

• Jurisdiction: South Africa
• Judge: Rogers AJ
• Judgment Date: 14 November 2011
• Citation: 2012 (5) SA 430 (WCC)
• Docket Number: 19449/2011
• Hearing Date: 10 November 2011
• Counsel: BJ Manca SC (with NL Badenhorst) for the plaintiff. FSG Sievers for the defendant.
• Court: Western Cape High Court, Cape Town

Rogers AJ:

Introduction

[1] The plaintiff asks for summary judgment against the defendant on F various claims. The first claim — for R1 115 933,44 — is for money lent to the defendant on his personal bank account. The other claims — which total R11 811 721,86 — are based on suretyships the defendant executed in the plaintiff's favour for the debts of Golf Development International Holdings (Pty) Ltd (GDI) and Winners-Circle 111 (Pty) Ltd (WC). Both GDI and WC are in liquidation. G

[2] The defendant delivered an opposing affidavit and was represented at the hearing by Mr Sievers. Mr Manca SC appeared for the plaintiff together with Ms Badenhorst.

Claim against defendant as principal debtor H

[3] In regard to the claim for R1 115 933,44, the defendant denies being indebted to the plaintiff in this amount or at all. In explanation of this denial he says that in June and October 2006 he bought two erven in the Pinnacle Point development in Mossel Bay from Pinnacle Point Resorts (Pty) Ltd (PPR). He settled the purchase price under these agreements I (R3 072 870 in all) and was thus 'the owner' of the erven and 'entitled to the transfer thereof' into his name.

[4] He continues by alleging that the plaintiff has 'taken possession' of the erven 'and purports to hold them as security for debts of [PPR] to it'. The plaintiff, so he alleges, is thus 'holding' his two erven for which he J

Rogers AJ

A paid R3 072 870 and he accordingly has a claim against the plaintiff exceeding the plaintiff s claim against him (R1 115 933,44).

[5] It is apparent that the defendant's denial of indebtedness to the plaintiff is not strictly accurate. He has not alleged facts to show that the plaintiff does not have a claim against him for R1 115 933,44. His B defence is that he has an unrelated counterclaim exceeding this figure. This is a permissible answer in a claim for summary judgment. The general approach in such cases is set out in Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd2004 (6) SA 29 (SCA) ([2004] 2 All SA 366). As pointed out in this case, the starting point in C terms of rule 32(3)(b) is that the defendant must make full disclosure of the nature and the grounds of the counterclaim as well as the material facts on which it rests (para 10).

[6] Manifestly the defendant has not met this requirement. He has not explained how he could be the owner of the erven if he still needs to D obtain transfer of them into his name. Mr Sievers submitted that under our system of ownership it is possible for a person to be the owner of immovable property without having registration in his name (for example, where ownership is acquired through acquisitive prescription). That is so, but none of the unusual circumstances in which this may occur have been alleged in this case. On the facts alleged by the E defendant, one is simply dealing with the case of a purchaser who has met his obligations in full but has not yet taken transfer of the property.

[7] The defendant has, furthermore, not explained how any actions by the plaintiff could have prevented him in law from obtaining transfer in F circumstances where he has allegedly fulfilled all his obligations as purchaser. He does not say when and in what way the plaintiff has supposedly taken possession of the erven or what the nature of the security is that the plaintiff asserts. He does not even allege that the plaintiff's actions in relation to the erven have been unlawful. If the plaintiff's actions have been lawful the defendant naturally can have no G claim against the plaintiff (though he may have a claim against PPR); if the plaintiff's actions on the other hand have been unlawful it is not apparent how the unlawful actions could be a bar to the defendant obtaining transfer of the erven and if necessary evicting the plaintiff. After all, the agreements were concluded in 2006. The defendant has had ample time to assert and pursue his rights. He does not explain what H has happened in the six years since then or why he is only asserting the counterclaim at this stage.

[8] Finally, the defendant has not explained how, if he is in fact the owner of the erven with a right to obtain transfer, the plaintiff's actions could have caused him to suffer damages or how these damages have I been calculated. The fact that he paid more than R3 million for the erven is neither here nor there because on his version he is the owner of the erven and/or has a right to take transfer of the erven.

[9] Despite the defendant's failure to comply with rule 32(3)(b) in regard to his asserted counterclaim I have an overriding discretion to J refuse summary judgment. However, and as stated in Soil Fumigation,

Rogers AJ

the fact that the defence is a counterclaim is a relevant consideration in A exercising this discretion. This is so for the reason that the grant of summary judgment does not prevent the defendant from instituting the counterclaim in a separate action. The court would thus be less inclined in such a case to exercise the overriding discretion in the defendant's favour (see para 11 read with para 25 of the Soil Fumigation case). [1] B Mr Sievers did not argue that I should exercise an overriding discretion in the defendant's favour on this basis and in any event I see no grounds for doing so, given the extremely sketchy if not unintelligible basis of the asserted counterclaim.

Claims against defendant as surety C

[10] In regard to the very substantial claims against the defendant as surety for GDI and WC, the defendant's opposition rests on the fact that according to him applications have been issued to place GDI and WC under supervision and to commence business rescue proceedings in respect of...