SB Guarantee Compnay (RF) Proprietary Ltd v Baroville Trade and Investments (Pty) Ltd and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Kuny J |
| Judgment Date | 19 September 2023 |
| Citation | 2023 JDR 3608 (GJ) |
| Hearing Date | 23 February 2023 |
| Docket Number | 2021/52787 |
| Court | Gauteng Local Division, Johannesburg |
Kuny J:
The applicant, SB Guarantee Company (RF) Proprietary Limited, issued summons on 5 November 2021 against the first defendant, Baroville Trade and Investments (Pty) Ltd and the second defendant, Marius Strydom. The plaintiff’s claim against the first defendant, inter alia, is for payment of monies in terms of an indemnity and covering mortgage bond. Its claim against the second defendant is based on a suretyship given in respect of the first defendant’s
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indebtedness to the plaintiff arising from the above instruments.
On 14 February 2022 the plaintiff filed a notice of bar. The defendants entered a plea on 18 February 2022. On 9 March 2022 the plaintiff applied for summary judgment seeking:
As against the first defendant:
Payment of the amount of R798,870.56.
Interest on the amount referred to above at the rate of 6.38% per annum from 24 August 2021 to date of payment, both dates inclusive.
An immovable property described as Portion 10 Erf 3406 Northcliff Extension 25 Township Registration Division I.Q. Province of Gauteng be declared executable for the aforesaid amount.
An order authorising the issuing of a writ of execution in terms of Rule 46 as read with Rule 46(A) for the attachment of the immovable property.
That a reserve price be set for the sale of the property, at a sale in execution, at a value to be determined by the Honourable Court.
Costs of suit on the attorney and client scale.
As against the second defendant:
Payment of the amount of R750 000.
Interest on the aforesaid amount at the rate of 6.38% per annum from 09 November 2021 to date of payment both dates inclusive.
costs of suit on the attorney and client scale.
further and/or alternative relief.
A defendant who opposes a claim for summary judgment is required to satisfy the court by affidavit that he has a bona fide defence to the plaintiff’s claims. The court is required to decide whether on the facts so disclosed, the defendant has
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a defence which is both bona fide and good in law. [1]
PLAINTIFF’S PARTICULARS OF CLAIM
The particulars of claim allege that on or about 7 March 2019, at Pretoria, the Standard Bank of South Africa Ltd (“the Bank”) and the first defendant entered into a home loan agreement (“the home loan agreement”). In terms of this agreement the Bank agreed to lend and advance the first defendant an amount of R750 000. The total amount of the principle debt in respect of this agreement was recorded as R763 013.16.
The home loan agreement was conditional upon:
The plaintiff furnishing a guarantee to the Bank, undertaking to pay the amount owing in terms of the home loan agreement in the event that the first defendant defaulted under the said agreement.
The first defendant indemnifying the plaintiff against any claim by the Bank under the aforesaid guarantee.
The registration by the first defendant of a mortgage bond in favour of the plaintiff for an amount of R750 000 over Portion 10 Erf 3406 Northcliff Extension 25 Township Registration Division I.Q. Province of Gauteng (“the immovable property”).
On 7 March 2019, the second defendant acting on behalf of the first defendant, signed a document entitled “INDEMNITY BY THE BORROWER IN FAVOUR OF THE GUARANTOR” (“the Indemnity”). In terms of this agreement the first defendant indemnified and held the plaintiff harmless against all loss, damage, costs, expenses and liabilities which it may suffer or incur as a result of or in connection with any claims by the Bank against the plaintiff arising out of the
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guarantee.
The guarantee was defined in clause 1.1.5 in the Indemnity as:
“. . . . a written guarantee given by the Guarantor in favour of the Bank or the Transferee in terms of which the Guarantor guarantees to the Bank or the Transferee, the fulfilment of the obligations of the Borrower in terms of the Loan Agreement subject to the terms and conditions of such Guarantee”
On 1 March 2015, the Bank and the plaintiff purported to enter into the Common Terms Guarantee Agreement. Clause 3.1 of this agreement provides:
In consideration for each Debtor granting the indemnity and, the Mortgage Bond to the Guarantor, and with effect from the date of registration of the relevant Mortgage Bond granted by each Debtor to the Guarantor over the Property purchased by that Debtor pursuant to the Home Loan Agreement, the Guarantor guarantees, subject to the terms and conditions of this Common Terms Agreement, the due and punctual payment of all sums now and subsequently due by each Debtor to the Creditor pursuant to each Debtor’s individual, Home Loan Agreement, which guarantee the Creditor accepts.
“Guarantee” in the Common Terms Guarantee Agreement was defined as an individual guarantee issued pursuant to and under this Common Terms Agreement in the form set out in Schedule “A”. The guarantor was defined as the plaintiff, the creditor as the Bank and the debtor as the individual or legal entity that borrowed money from the Bank.
On 7 March 2019, the plaintiff issued a separate guarantee in favour of the Bank. The guarantee is headed “Form of Guarantee” and it appears as Schedule “A” to the Common Terms Guarantee. No provision is made in the guarantee for the signature of the document by the Bank and it was signed by the plaintiff only.
On 27 March 2019, the first defendant registered a continuing covering mortgage bond over the immovable property in favour of the plaintiff as security for the
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fulfilment of the first defendant’s obligations to the plaintiff in terms, inter alia, of the following:
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