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REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 2009/262

DATE:24/07/2012

In the matter between:

BOTHA, ANDREW BRUCE....................................................Applicant

and

INVESTEC BANK LIMITED...................................................Respondent

J U D G M E N T

MOSHIDI, J:

INTRODUCTION

[1] The history of this matter is replete with protracted litigation between the parties. This is an application in which the applicant seeks an order rescinding and setting aside paragraphs 2, 3 and 4 of the judgment granted against him under Case No. 262/2009 by Van der Walt AJ on 11 November 2009.

[2] The judgment concerned was simultaneously granted against a co-director of the applicant, Mr Jonathan Molyneux-Killik (“Killik”) in a company called MKB Group Holdings (Pty) Ltd (“MKB”). The judgment forming the subject-matter of the present application is in the form of judgment debts totalling more than R103 million payable to the respondent.

THE BASIS FOR THE PRESENT APPLICATION

[3] The main basis for the rescission is that, in seeking the judgment against him, the respondent relied on six fraudulently obtained deeds of suretyship allegedly signed by the applicant and Killik binding themselves as sureties and co-principal debtors for the amounts loaned to MKB by the respondent in terms of the loan agreements. As a consequence, the applicant alleges that since he discovered the fraudulent signatures on the suretyships recently, had Van der Walt AJ been aware of the fraud, prior to the granting of the judgment, he would not have granted such judgment. Based on certain information, which is discussed later in the judgment, the applicant contends that the alleged fraud was perpetrated by the respondent or a person or persons in the employ of or associated with the respondent, resulting in his signatures being forged on each and every one of the suretyships. In such circumstances, so the assertion continues, the judgment was sought and granted in error, the error having been induced by fraud constituted by the forged signatures on the relevant deeds of suretyship. A confirmatory affidavit of Killik was attached to the founding papers. The respondent naturally, as shown below, vehemently opposes the present application.

THE HISTORY OF THE MATTER

[4] It is necessary to deal at some length with the history of the matter, the relationship between the parties, leading to the initial litigation. Indeed, the papers show convincingly that the applicant is a seasoned businessman. He was a co-director with Killik in the MKB Group. The latter had a number of separate companies which were under the stewardship and control, in the main, of self-same directors and co-shareholders, being predominantly the applicant, and/or their family trusts, viz the Molyneux-Katherine Family Trust and the ABF Trust. These separate entities within the MKB Group, and the applicant, have, in regard to the various loan agreements bound themselves as sureties and co-principal debtors, in solidum, in respect of the various separate loans to the principal debtor by the respondent. The respondent has approved various loan facilities to the principal debtor (MKB) to develop and complete various property related developments in and around the greater Sandton, Johannesburg, area. The respondent was in control of such entities. In the long run, the applicant became exposed to the respondent as surety and co-principal debtor with the principal debtor and the following individuals/entities:

1. MKB Cabinetry (Pty) Ltd,

2. MKB Electrical (Pty) Ltd,

3. MKB Aviation (Pty) Ltd,

4. MKB Property Holdings (Pty) Ltd, and

5. MKB Property Developments (Pty) Ltd.

In the end, there were six deeds of suretyships executed in favour of the respondent.

[5] On the version of the respondent, the principal debtor defaulted under the loan agreements. As a consequence, the respondent during January 2009 instituted the money judgment application against the applicant based on the six deeds of suretyship executed by the applicant in favour of the respondent. The copies of the six deeds of suretyship were attached to the money judgment application and also attached to the answering papers in the present proceedings.

[6] The opposition offered by the applicant in his answering affidavit in the money judgment application was significantly interesting and relevant to the issue to be decided in the present application. In such answering affidavit, which also comprised Killik’s defence, the applicant at pages 272-273 stated as follows:

“7. I confirm in particular that in respect of the amounts claimed based on the Deed of Suretyship in respect of account 204683/005, the Deed of Suretyship which is purportedly signed by me, does not contain my signature. I do not know whose signature it is, but it is not mine nor does it appear to contain Mr Killik’s signature.

8. In addition, and excluding the irregular and void Deed of Suretyship relating to account 204683/005, the remaining Deeds of Suretyship relied upon by the Applicant in the above application are only signed by me as a director.”

From the above quotation in the answering affidavit, it is apparent that the applicant had examined closely the six deeds of suretyship on which the respondent’s claims were based. Had he not done so, he could never have stated under oath that one of the signatures on account No 204683/005 was not his. Account No 204683/2005 relates to one of the loan agreements. However, it is significant that the applicant in opposing the money judgment application unambiguously stated that:

“… The remaining Deeds of Suretyship relied upon by the Applicant [present respondent] in the above application are only signed by me as a director.” (my insertion)

The only substantive defence proffered by the applicant and Killik in the money judgment was that, in his capacity as a surety, he had been prejudiced by the respondent’s conduct by not advancing further funds to MKB and that he was therefore entitled to be released from his obligations under the deeds of suretyship. The defence raised in the money judgment application as revealed above, plainly begs the question on what credible basis the present application for rescission could succeed. I must, however, add that in the present application, the applicant relies almost exclusively on the evidence of an expert handwriting report, which is dealt with later in the judgment.

THE MONEY JUDGMENT APPLICATION

[7] The money judgment application, as stated above, was argued before Van der Walt AJ, during June 2009. At that hearing, the applicant brought an application to postpone the application, which postponement application was refused. The money judgment application was then argued and judgment was reserved. However, before the judgment was delivered, the applicant launched an application to re-open the money judgment application in order to lead further evidence to bolster his defence of alleged prejudice. The application to re-open was opposed by the respondent. In dismissing the application to re-open, Van der Walt AJ at para [19] of his judgment had this to say:

“I am of the view that this is merely another attempt by the respondents to delay the inevitable and I decline to exercise my discretion in their favour. The applicant has indicated that I should dismiss the claim with costs as between attorney and client. Whether this request is made in terms of the provisions of the suretyships or as a punitive order matters not. Allegations of mala fides has been made and I have found that the application is not made bona fide but merely to delay matters and it is therefore an abuse of the process of Court. I would therefore be inclined to make a costs order on a punitive basis even if it was not in terms of the provisions of the suretyships.”

The applicant and Killik were subsequently ordered to pay the costs on the scale as between attorney and client. On 10 November 2009, Van der Walt AJ handed down judgment in favour of the respondent in respect of the six money judgment claims based on the deeds of suretyship. That judgment is the subject-matter of the present rescission application.

[8] It is significant that in his judgment on the money judgment application, Van der Walt AJ, at para [11] said:

“As far as the allegation was made in the answering affidavits of the respondents that one of the deeds of suretyship was not signed, this was abandoned during the course of argument. What apparently occurred was that there was a previous related matter where affidavits were exchanged and parts of those affidavits were simply transposed to the present application. The signing of all the deeds of suretyship relied on in the present case is therefore not in dispute. It is important to note that there was a transposing of allegations made in other affidavits to this matter without apparently checking whether the denials or allegations properly fitted in. When I deal with the bona fides of the defence of prejudice of the respondents the importance of the manner in which the affidavits are approached will be addressed.”

The applicant’s defence that one of the deeds of suretyship was not signed by him was put to rest. Van der Walt AJ found, as proved, that the signing of all the deeds of suretyship relied on by the respondent was not in dispute, and that the defence of alleged prejudice had been raised merely as a delaying tactic on the part of the applicant and Killik.

[9] However, the above did not signal the end of the litigation between the parties. On 23 November 2009 the applicant filed an application for leave to appeal against the judgment of Van der Walt AJ. Significantly, in that application, the applicant did not challenge the Judge’s finding that the validity of the six deeds of suretyship were not in dispute. The application for leave to appeal was duly refused on 12 December 2009. On 14 December 2009 the applicant launched an application for leave to appeal to the Supreme Court of Appeal. In his affidavit, the applicant significantly alleged, inter alia, that:

“12. Two defences were raised by Killik and me in opposition to Investec’s claim, being as follows:

1. Not all the deeds of suretyships relied upon by Investec were signed by Killik and me.

2. Conduct on the part of Investec amounting to prejudice to Killik and me as sureties.

13. The defence of not all the deeds of suretyship having been signed by Killik and me was not persisted with, and only the defence of prejudice to Killik and me as sureties was persisted with.”

From the above, it is plain that the applicant and Killik abandoned any defence relating to the signatures of the six deeds of suretyship. It therefore came as no surprise that on 12 March 2010, the Supreme Court of Appeal dismissed the application for leave to appeal with costs.

[10] In the meantime, and on 29 September 2010, the respondent launched an application for the sequestration of the applicant’s estate on the ground that he had committed an act of insolvency as contemplated in section 8(b) of the Insolvency Act 24 of 1936, and that he was factually insolvent. The applicant’s response to the sequestration application as mirrored in his answering affidavit, was once more eventful and significant. Not only did the applicant admit his insolvency, but he also admitted that the money judgments were in fact based on the deeds of suretyship executed by him and Killik. In this regard, the respondent in the present matter rightly argues that nowhere in the answering affidavit in the sequestration application did the applicant challenge the validity of the suretyships upon which the judgment debts were premised. In essence, the only issue in dispute in the sequestration application was whether the respondent could demonstrate an advantage to creditors. The indebtedness and the act of insolvency were conceded by the applicant. In the end, the applicant withdrew his opposition to the sequestration application. Consequently, the provisional order for the sequestration of the applicant’s estate was obtained on unopposed basis. The return day was 5 April 2011. However, on the eve of the return date, the applicant launched an application for the extension of the return date. For the sake of brevity, the provisional order of sequestration remains extended pending the outcome of the judgment in the present proceedings. In this regard, I must mention two matters. The first is that the respondent has not pursued its preliminary point that the applicant has no locus standi in bringing the present application since his estate had been provisionally sequestrated. In the replying affidavit the applicant has since applied for the joinder of his trustee in these proceedings. I need to say no more on this aspect. The other matter requiring brief mention is that Nedbank Limited has since applied to intervene in this application. The reason for the intervention is that, in the event that the rescission application succeeds, Nedbank contends that it intends to obtain a fresh order for the provisional sequestration of the applicant’s estate. The application for intervention therefore clearly hinges on the outcome of the present application. The principal debtor, MKB Group Holdings (Pty) Ltd (“MKB”), was provisionally wound-up already on 17 December 2008 and was finally wound-up on 3 February 2009.

[11] In the view I take of the matter, the dispute between the parties is capable of resolution in favour of the respondent on the voluminous papers, apart from the expert evidence. I deal first with the former. In para 6 of the founding affidavit, the applicant contends that:

“The application is brought as a result of my recent discovery that the signatures on the deeds of suretyship on which the respondent relied in the money judgment application are all forgeries. I explain fully below the circumstances in which I became aware of the forgeries. The report of J F Hattingh, a handwriting expert, is also attached and referred to more fully below.” The founding affidavit was attested on 31 May 2011.

[12] I have already, in the course of sketching the history of this matter, alluded to certain significant features and inconsistencies in the version of the applicant. The main difficulty is that the applicant does not proffer any explanation as to, for example, how and why the signatures on the suretyships could have occurred. One is constantly left to speculate on this aspect on the version advanced by the applicant.

THE COMMON CAUSE FACTS

[13] The common cause facts or those not seriously challenged, have been succinctly set out in the respondent’s heads of argument, which I choose to adopt. These are that, the suretyships in question were part of the six transactions in respect of which the respondent advanced loans to the principal debtor, i.e. MKB and Killik and the applicant stood surety for the due repayment of the loans. Each transaction comprised a number of agreements including the following:

13.1 A loan agreement between Investec and MKB. Mr Botha (the applicant) signed all the loan agreements on behalf of MKB. These signatures are not in dispute;

2. Personal suretyships by Mr Botha and Mr Killik. Mr Botha now disputes the authenticity of his signature on these documents. There is no real dispute about the authenticity of Mr Killik’s signatures;

2. Corporate suretyships by other companies in the MKB Group. Mr Botha signed the suretyships. Some of them were once challenged but there is no longer any dispute about them; and

2. Mortgage bonds, cessions and other forms of security given by MKB and its subsidiaries.

[14] The six loan agreements, including the applicant’s suretyships and Mr Killik’s suretyships, consist of transactions of the following loans made by the applicant to MKB:

1. A loan of R14 m on 24 March 2007 (contract 001);

2. A loan of R31 520 000 made on 22 April 2008 (contract 005);

3. A loan of R25 001 280 made on 25 May 2007 (contract 009);

4. A loan of R15 010 000 made on 2 April 2007 (contract 012);

5. A loan of R19 900 000 made on 9 August 2007 (contract 014); and

6. A loan of R11 500 000 made on 29 September 2007 (contract 015).

[15] The loan agreements and suretyships associated with them, Loan Agreements 1 to 6 are referred to as the applicant’s suretyships 1 to 6 and Killik’s suretyships 1 to 6. The applicant signed each loan agreement and initialled each page on behalf of MKB, on the version of the respondent, and these signatures and initials are or ought not to be in dispute. The applicant said in his founding affidavit that his “untrained eye” has now identified “several questionable signatures on several documents” but that Mr Hattingh would inspect them. Mr Hattingh has filed a further report in reply but does not seem to challenge the authenticity of Botha’s signatures on any of the loan agreements, as discussed later in this judgment.

[16] Killik signed his suretyships and initialled each page. He does not dispute the authenticity of these signatures and initials as he would have done if they were not his. No such dispute was raised in the applicant’s founding papers which included an affidavit by Killik. In his reply, the applicant says that he has “no knowledge of Killik having executed the deeds of suretyship” but later the applicant says that “Killik has also questioned the authenticity of his alleged signature in the documents allegedly signed by him”.

[17] The applicant and Killik’s signatures on all the loan agreements and suretyships are, with a single exception, witnessed by the same witnesses on every occasion. The witnesses, Penny and Collins, witnessed the signatures on the transactions of the applicant and Killik’s suretyships in respect of transaction number 1. The witnesses, Penny and Barlow, witnessed the signatures of the applicant’s suretyship and that of Killik in regard to transaction number 2. The witnesses, Penny and Campbell, witnessed the signatures of the applicant’s suretyships and those of Killik in regard to transaction number 3. The witnesses, Penny and Collins, witnessed the signatures on the transactions involving the suretyships of the applicant and Killik in regard to the fourth transaction. The witnesses, Collins and Lambert and Collins and Cross, witnessed the signatures of the transactions involving the suretyships of the applicant and Killik in regard to transaction number 5. The witnesses, Penny and Cross, witnessed the signatures in the transactions involving the suretyships of the applicant and Killik in regard to transaction number 6. All these witnesses except Ms Cross, were employees of MKB at the time. Ms Penny was the applicant’s personal assistant. Ms Collins was Killik’s personal assistant. Mr Barlow was a development assistant with MKB for about four months in 2008. Mr Campbell was a personal assistant who worked with Ms Penny for about three weeks in May and June 2007. Ms Lambert was the financial manager of MKB.

[18] Ms Cross, the conveyancing secretary at Strauss Scher Attorneys, witnessed Killik’s suretyship number 5, Loan Agreement 6, the applicant’s suretyship 6 and Killik’s suretyship 6. She did so because she noticed that, when these agreements were returned to her, they had only been signed by one witness. She witnessed Killik’s and the applicant’s signatures as the second witness because she knew and recognised their signatures. The applicant admits that he made handwritten amendments to the loan agreements and his suretyships and sometimes initialled the amendments before MKB returned the agreements to Ms Cross. The agreements are replete with amendments of this kind and the respondent provides the following examples:

1. The applicant’s suretyship 2: The applicant deleted clause 18 and initialled the deletion;

2. Loan agreement 3: The applicant made a written insertion after clause 9.1;

3. The applicant’s suretyship 3: The applicant deleted clause 18;

4. Loan agreement 4: The applicant made handwritten insertions after clauses 4.1.4 and 9.1 and in the Standard Terms and Conditions after clause 18.3.2;

5. The applicant’s suretyship 5: The applicant made a written insertion after clause 1.2 and deleted clause 18; and

6. The applicant’s suretyship 6: The applicant made a written insertion after clause 1.2 and deleted clause 18.

[19] The respondent contends that the applicant had in fact scrutinised and made changes to his own suretyships and sometimes even initialled those changes but did not sign the suretyships themselves. In return the applicant explains how this occurred by alleging as follows:

“When documents were presented to me for consideration and signature, I often deleted in the manuscript unacceptable clauses and returned them unsigned to Penny or Collins to discuss with the respondent’s representatives. I also sometimes made amendments and additions to the documents. When I did this, I sometimes initialled the amendment or addition concerned without necessarily signing or initialling the page or document embodying the same.”

The respondent also contends that the explanation given by the applicant is devoid of any credibility because the applicant knew that the respondent would not advance the loan proceeds to MKB before all the transaction documents, including his suretyship, had been fully executed. In this regard Ms Currie of the respondent says that it was, ‘an absolute requirement’ that each of Botha and Killik bind themselves as surety and co-principal debtor in respect of each principal debt. Both Botha and Killik were aware that Investec would not advance any funds to the principal debtor unless each of them had signed a deed of suretyship in respect of the loan.

In addition, Ms Penny confirms that the applicant, “was meticulous in ensuring that all the relevant documents were properly signed because he knew that Investec would not release any funds if the loan agreement and suretyships were not properly signed. I was also aware of this fact”. The undisputed evidence of Ms Penny, Ms Cross and Ms Currie is that, by the time Ms Penny returned the transaction documents to Ms Cross and she returned them to the respondent, the applicant’s suretyships at least appeared to have been signed by him. It is not in dispute that Ms Penny prided herself on being an efficient personal assistant. Ms Cross’s undisputed evidence is that she was “extremely impressed with Penny’s professionalism and attention to detail” in having the transaction documents properly signed and witnessed. Ms Penny further says that she “would never have returned deeds of suretyship to Strauss Scher which had not been signed by both Botha and Killik and properly witnessed”. Ms Cross was a conveyancing secretary of some 30 years’ experience. Her mandate from the respondent was to ensure that the transaction documents had been properly signed and witnessed before returning them to the respondent. Her undisputed evidence is that she meticulously executed this mandate. Before sending the transaction documents to Ms Penny she indicated on them in pencil where and by whom they had to be signed. She, inter alia, indicated on the applicant’s suretyships where he had to sign. When she received the transaction documents back from Ms Penny, she carefully checked to make sure that they had been properly executed. It is for instance clear that she carefully checked the applicant’s suretyships because her undisputed evidence is that:

1. On Mr Botha’s suretyship 2, she wrote in the date on page 9 immediately above Mr Botha’s signature “once the signed and witnessed deed of suretyship had been returned to me”;

2. On Mr Botha’s suretyship 4, she wrote in the place and date immediately above Mr Botha’s signature on page 7 “once I had received the signed and witnessed deed of suretyship from MKB”;

3. On Mr Botha’s suretyship 5, she wrote in the date immediately above Mr Botha’s signature on page “once I had received the signed and witnessed deed of suretyship from MKB”; and

4. On Mr Botha’s suretyship 6, she wrote in the place and date immediately above his signature and signed as a witness immediately below his signature on page 9 after she “had received the signed and witnessed deed of suretyship from MKB”.

It appears from these assertions that Ms Cross meticulously checked the applicant’s suretyships and that they must have been signed when she did so. She could not possibly have overlooked an unsigned suretyship, particularly when she so carefully completed the initials immediately above and below the surety’s signature. The applicant does not dispute Ms Cross’s evidence that she “would never have returned unsigned or unwitnessed documents to Investec for reasons that are manifest”.

[20] Ms Currie confirms that the applicant’s suretyships were duly completed when the respondent received them from Ms Cross. The respondent’s Legal Risk Section checked the transaction documents including the suretyships to ensure that they had been properly signed and witnessed. Ms Currie says that the Legal Risk Section queried the applicant’s suretyships 2, 3, 5 and 6 with her because she had deleted clause 18. They required her on each occasion to get the respondent’s authority for the deletion. She obtained the necessary authority and informed the applicant that she had done so. It is, in the light of this evidence, clear that the Legal Risk Section would have noticed if any of applicant’s suretyships were unsigned.

[21] The applicant seeks rescission of the money judgment on the basis of alleged fraud on the part of the respondent or its employees or its associates. Further that the money judgment was therefore granted in error. He does not explicitly rely on Rule 42(1)(a) of the Uniform Rules of Court, which provides, inter alia that:

“(1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

1. an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby.”

Nor does the applicant rely on the provisions of Rule 31(2)(b) which deal with the rescission of judgments granted by default. From the uncontroverted evidence in the present matter it is plain that the money judgment in issue was not granted by default. In De Wet and Others v Western Bank Ltd 1977 (4) SA 770 (T) the Court, in dealing with the inherent power of Courts, at p 780H-781, said:

“This, in my view, does not include the right to interfere with the principle of the finality of judgments other than in circumstances specifically provided for in the Rules or at common law. Such a power is not a necessary concomitant to the inherent power to control the procedure and proceedings in a Court. I am of the opinion, as set out above, that the powers in the Rules of Court, in this regard, are specific powers vested in the Court over and above the powers to assist in this connection in the common law.”

[22] In the present matter, for the applicant to succeed, in his claim, he must allege and prove that the respondent gave incorrect evidence or misled the Court which granted the money judgment; that fraud was indeed committed; and that such fraud was material, i.e. had the Court known the true facts, it would have given a judgment different from the one it gave. See Childerley Estates Stores v Standard Bank of SA Ltd 1924 OPD 163. (Cf Rowe v Rowe [1997] ZASCA 54; 1997 (4) SA 160 (SCA), where the husband succeeded in a rescission application after he was misled by his wife regarding the fatherhood of the minor children. In Herbstein and Van Winsen, The Civil Practice of the High Courts 5ed, Vol 1, at p 939, it is stated:

“It must, however, be shown that the successful litigant was a party to the fraud or perjury on the ground of which it is sought to set aside the judgment, furthermore, there must be proof that the party seeking rescission was unaware of the fraud until after the judgment was delivered. It is not sufficient for the applicant for rescission to prove merely that a fraud was practised on the court, which resulted in a wrong judgment.”

In the passage just quoted, reference is made to, inter alia, Makings and Makings 1958 (1) SA 338 (A) and Port Edward Town Board v Kay 1994 (1) SA 690 (D) at 705H-706F. In the Makings matter at p 344G-H the Court said:

“It is not clear that Rex v Schiff can be said to have decided, as part  of its ratio decidendi, that a judgment will not be set aside on the ground of fraud, unless it is shown that the successful litigant was a party to the fraud. But the question was under consideration and, as I read the judgments, the view of the members of the Court was that the litigant must have been a party to the fraud if the judgment is to be open to attack.

On principle that would seem to be right. The law draws a distinction for present purposes between merely erroneous evidence and evidence that is fraudulently false; the distinction is well brought out in the judgment in Childerley Estates Stores v Standard Bank, supra. But there does not seem to be any reason why the rights of the parties should vary according as the wrong evidence of a witness was honestly given or was deliberately falsified to serve some purpose of his own. If the successful litigant was a party to the perjury there would be good reason why, notwithstanding the general desirability that lawsuits should come to finality, the wrongdoer should not be allowed to hold his ill-gotten judgment. But if he was himself honest there seems to be no reason why he should not keep his judgment whether the witness who gave wrong evidence was dishonest or merely mistaken.”

[23] Finally, in regard to the rescission of default judgments alleged to have been erroneously granted, in Lodhi 2 Properties Investments CC v Bondev Developments 2007 (6) SA 87 (SCA), the Court at para [25] said:

“[25] However, a judgment to which a party is procedurally entitled cannot be considered to have been granted erroneously by  reason of facts of which the Judge who granted the judgment, as he was entitled to do, was unaware, as was held to be the case by Nepgen J in Stander. See in this regard Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) ([2003] 2 All SA 113) in paras 9-10 in which an application in terms of Rule 42(1)(a) for rescission of a summary judgment  granted in the absence of the defendant was refused notwithstanding the fact that it was accepted that the defendant wanted to defend the application but did not do so because the application had not been brought to the attention of his Bellville attorney. This Court held that no procedural irregularity or mistake in respect of the issue of the order had been committed and that it was not possible to conclude that the order had erroneously been sought or had erroneously been granted by the Judge who granted the order.”

At para [27] the Court went on to say:

“Similarly, in a case where a plaintiff is procedurally entitled to judgment in the absence of the defendant the judgment if granted cannot be said to have been granted erroneously in the light of a subsequently disclosed defence. A Court which grants a judgment by default like the judgments we are presently concerned with, does not grant the judgment on the basis that the defendant does not have a defence: it grants the judgment on the basis that the defendant has been notified of the plaintiff's claim as required by the Rules, that the defendant, not having given notice of an intention to defend, is not defending the matter and that the plaintiff is in terms of the Rules entitled to the order sought. The existence or non-existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a validly obtained judgment into an erroneous judgment.”

[24] In the instant matter, the applicant was continuously part of the money judgment application. He and Killik participated thereat. They also took part in the re-opening judgment application. They raised contradictory and dilatory defences. At first, the applicant denied one only signature on the deeds of suretyship. Later, all six signatures of the applicant were admitted. It was only much later, around May 2011, that the version that all six signatures on the deeds of suretyship were forged was commenced with. On the basis of the case law cited above, the respondent was perfectly and procedurally entitled to the money judgment. There can therefore be no question that the judgment was granted in error as contended for by the applicant. The existence or non-existence of the now proffered defence of alleged fraud on the merits is an irrelevant consideration, and if subsequently disclosed, as is the case in this matter, it cannot transform a validly obtained judgment into an erroneous one (see Lodhi 2 Properties Investments CC, supra, para [27]). The applicant does not engage with the evidence of Ms Penny, Ms Cross and Ms Currie at all. The undisputed evidence that, when Ms Cross received the transaction documents from Ms Penny and forwarded them to the respondent, the applicant’s suretyships had been signed, permits of only two conclusions, both of which are fatal to the applicant’s claim for rescission. The first is that he in fact signed his suretyships. The suggestion that he might not have done so and that somebody else forged his signature on all six his suretyships, and as argued by the respondent, is irreconcilable with the undisputed evidence, far-fetched and fanciful in the extreme. The second reason is that, if his signatures on his suretyships were forged, then the forgeries must have been made before Ms Penny returned the transaction documents to Ms Cross and the latter returned them to the respondent. The evidence that the applicant’s suretyships at least appeared to have been signed by the time Ms Cross and the respondent received them, is undisputed and overwhelming. It means at the very least that, on any version, the respondent was not guilty of, and did not participate in any forgery. This conclusion is itself fatal to the applicant’s claim for rescission, even if his signatures were forged.

[25] I have already dealt with the findings of Van der Walt AJ regarding the conduct and defences of the applicant and Killik during the money judgment application process.

[26] The argument advanced on behalf of the respondent that the present application for rescission perpetuates the pattern of delaying tactics, and is bereft of any bona fide defence, is not without any merit. A typical recent example of the delaying tactics was the applicant’s sudden and belated application for the extension of the order for his provisional sequestration which was brought on the eve of the return date. In my view, the applicant is plainly delaying his inevitable sequestration by clinging to straws.

[27] There is more incredible in the applicant’s newest version of alleged fraud. In Watson v Hunter 1948 (3) SA 1106 (D), it was said that allegations of fraud are in their nature of the greatest gravity, and should not be made lightly. If made, such allegations must be formulated with the precision and fullness as required in a criminal case. The onus for an application for rescission based on fraud is on the applicant. See in this regard Swart v Wessels 1924 OPD 187. In Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A), the Court had to deal with an appeal wherein it was alleged, inter alia, that a franchise agreement was vitiated by fraud or misrepresentation by reason of which the appellant claimed rectification of the agreement. At p 435H of the judgment, Miller JA, in a unanimous judgment said:

“Mr Dison referred us in his main heads of argument to a score or more of cases relating to the effect upon a contract of unfair practices preceding its conclusion, of non-disclosure of the nature or implications of unusual terms contained in the proposed agreement, of undue influence and other practices akin to fraud. But those cases warrant consideration only if the facts of the present case might render them relevant. On the basis of the facts and circumstances (to be distinguished from comments, inferences and submissions) alleged in Tamarillo's answering affidavit, the evidence is wholly inadequate to justify a conclusion  that the franchise agreement was induced by fraud, or undue influence, or false representations, or that there are grounds for rectification.”

The appeal was dismissed. In my view, the evidence adduced by the applicant in the instant application, as shown above, and later below, is not only wholly inadequate, but also contradictory and vague to justify rescission of the judgment.

27.1 Counsel for the respondent, quite rightly so in my view, argued that the applicant’s explanation for his recent discovery of the possibility that his signature on the suretyships might have been forged, is contradictory and unreliable. The applicant merely alleges that Ms Thomas brought to his attention the fact that, “many loan agreements, supporting documents and sureties were either missing, had been signed incorrectly and in many instances had not been signed at all”. However, the applicant’s evidence of how this came about is inconsistent and not credible as well as seriously inadequate.

2. Moreover, in his founding affidavit, the applicant alleged that Ms Thomas had conveyed this critical information to Killik during a meeting between the two of them in March 2011, and that Killik had then conveyed the information to the applicant. In this regard, the applicant filed rather short confirmatory affidavits by Ms Thomas and Killik. In these circumstances of such grave allegations, more detail would be expected.

2. Furthermore, in his replying affidavit, the applicant omitted Killik from the whole saga. He now alleged that “I was approached by Glenda Thomas”, and that “Thomas’s approach and the things she told me alarmed me and I became concerned as to whether I had actually signed suretyships in respect of the loans concerned. As stated above, I had always assumed, without more, that the suretyships were genuine and it had never occurred to me that this might be the case. My acceptance of the veracity of the documents was such that I had never examined or scrutinised any signature on any of the deeds of suretyship concerned” (my underlining). This is plainly not the conduct of a seasoned businessman who signed, not one but six suretyship deeds. It begs the question why and on what basis the respondent would have advanced such huge sums of money if the suretyship deeds, as was argued, were not signed correctly and properly. In any event, the version of the applicant just quoted was not supported by confirmatory affidavits from Ms Thomas or Killik. It is clear that these inconsistencies give credence to the assertion that the version of the applicant consistently is bereft of any credibility.

2. There are more inconsistencies and blatant untruths. In para 29 of the founding affidavit, the applicant went on to conclude that:

“The careful scrutiny disclosed even to my untrained eye that several of the signatures were not mine.”

His endeavour to explain why this was not discovered before, made matters worse for the applicant. This is demonstrated in paras 16.1 and 16.2 of the replying affidavit where the applicant stated:

“In the course of my past dealings with the respondent I signed countless documents and agreements sometimes on behalf of MKB, sometimes on my own behalf and sometimes on behalf of other parties. It would be impossible for me to list, never mind recall all the documents and agreements that I have signed. I always assumed that the suretyships were genuine.”

Once more, this is plainly a lame and false explanation. This is so because the applicant has repeatedly disputed the authenticity of his signature in the litigation between him and the respondent, both before and during the money judgment application. It stands to reason therefore that the applicant must have scrutinised carefully the transaction documents including his suretyships to mount this defence. There is no evidence that the applicant was at any stage unduly influenced or coerced into signing the transaction documents. He signed the deeds of suretyships in the ordinary course of business. See Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997 (4) SA 66 (SCA). He must have expected suretyships in the transactions especially where huge loans were advanced to the principal debtor by the respondent. As stated earlier in the judgment, the applicant in his resistance thereto, disputed the authenticity of his signatures on his personal and on a corporate suretyship in relation to one loan only, i.e. Loan 2 of 22 April 2008. In this regard, the applicant also annexed, endorsed and confirmed an affidavit made by Killik in which affidavit Killik made it plain that the applicant disputed the authenticity of his signatures on both his personal suretyship and the corporate suretyship allegedly signed by him. At para 12 of the answering affidavit, Killik stated:

“It is correct that I signed various Deeds of Suretyships binding myself as surety in respect of monies advanced to essentially property owning and development companies within the MKB Group. I did not however sign the Deed of Suretyship under account 204683/005 (which Deed of Suretyship records the liability limit as being R31 520,000.00). The signature appearing on such Deed of Suretyship is not my signature … Similarly, Botha (applicant) did also not sign the Deed of Suretyship relating to this particular transaction and his purported signature on behalf of MKB Aviation (Pty) Ltd and MKB Cabinetry (Pty) Ltd is not his signature. Accordingly none of the sureties are bound by the Deed of Suretyship relating to account 204683/005.” (my insertion)

As stated above, the latter account is Loan 2. As against these assertions, it ought to be recalled, firstly, that the applicant abandoned his challenge to the authenticity of one of the personal suretyships during the hearing of the money judgment application. As is now known, the finding of the Court hearing the money judgment was that the signing of all the deeds of suretyships relied on in the matter was not in dispute. Secondly, it ought to be recalled that in his founding affidavit (which covered some 28 pages plus 51 paragraphs), in support of his application for leave to appeal the money judgment to the Supreme Court of Appeal, the applicant did not persist with his defence that he had not signed all his personal deeds of suretyship on which the respondent sought the money judgment against him. In this regard, para 13 of the affidavit was quoted earlier in this judgment. There was no allegation of fraud at all.

2. In addition to the above, in December 2008, the respondent launched an application for the winding-up of the principal debtor, MKB. The respondent simultaneously launched an application for the winding-up of a number of MKB’s subsidiaries, including MKB Aviation and MKB Cabinetry. The applications came before Beasley AJ. The applicant and Killik, as the two shareholders who ran the MKB Group, represented the companies. The applicant and Killik raised several defences to the winding-up applications. The applicant in the opposing papers, in particular denied that he had signed a corporate suretyship as security for the Loan Agreement 2 of 22 April 2008. However, Beasley AJ rejected the applicant’s challenge to the authenticity of his signature. In the course of the judgment, Beasley AJ had this to say:

“Botha signed considerable documentation with the bank in connection with loans and deeds of suretyships. In view of the express authority given to him to sign this particular deed it seems to be suspicious that he should seek to dispute his signature in this particular case. Thus in any event, even if Botha did not sign the April 2008 deed of suretyship, it does not dispose of the matter nor does it assist the respondent. Botha does not in any way challenge his signature to the other deeds of suretyship.”

[28] From all of the above, it is palpably plain that the applicant’s various assertions, including that he had always assumed that the original versions of the copies of the documents relied on by the respondent in all the motion proceedings brought against him were genuine, are all devoid of any truth, and lacking of credibility. I conclude therefore that the totality of the evidence presented on the affidavits shows overwhelmingly, and on a balance of probabilities, that the applicant has not made out a case for rescission. The inference that the instant application is a further attempt to abuse the process of this Court in order to delay his final sequestration, becomes irresistible. The excuses advanced by the applicant are collectively smoke screens, not amounting to genuine and bona fide disputes of fact as envisaged in Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading 2011 (1) SA 8 (SCA). On the contrary, the Court should be loath to countenance the blatant abuse of its process and unnecessarily delay justice. See Soffiantini v Mould 1956 (4) SA 150 (E) at 154G-H. The application for rescission must fail. However, if I am incorrect in my determination of the issues on the affidavits, excluding the expert evidence, I believe that the applicant should also not succeed on the handwriting experts’ evidence.

THE APPLICANT’S HANDWRITING EXPERT EVIDENCE

[29] I deal with the applicant’s reliance on the evidence of the handwriting expert, Mr J F Hattingh, (“Hattingh”), for the assertion that the judgment was sought and granted in error. Further that the error was induced by the fraud constituted by the forged signatures on the relevant deeds of suretyship. I must, at the outset, mention that the opinions and conclusions reached by Hattingh have been shown by counsel for the respondent to be flawed in several respects. Hattingh, of own volition, has since his reports made certain concessions in the face of the opinions of the three independent handwriting experts commissioned on behalf of the respondent. The concessions by Hattingh, in my view, were rightly made.

[30] It is indeed not in dispute that Hattingh, an expert in the field of handwriting, signatures and forgeries, examined the six original deeds of suretyship in question at the behest of the applicant. Hattingh, who filed confirmatory affidavits, had been asked to compare the applicant’s signatures on the disputed suretyships with the applicant’s specimen signature on:

1. Thirteen (13) cheques issued by Standard Bank (ranging from 20 June to 6 October 2008);

2. An A3 sheet of paper containing one specimen signature provided by the applicant on 11 May 2011; and

3. A copy of the respondent’s document with Client No. 241492, Contract 110 dated 7 August 2007 consisting of 11 pages.

[31] In his first report dated 13 May 2011, Hattingh concluded that:

“The signature of A Botha on the disputed documents as follow are forgeries of the person’s signatures who signed the specimens.”

[32] As stated above, the respondent on its own turn, commissioned three independent handwriting experts, namely Messrs J V Bester (“Bester”); Lieutenant G M Cloete (“Cloete”) and C Greenfield (“Greenfield”), in order to compare the applicant’s signatures on the six disputed suretyships with the specimen signatures on which Hattingh had relied as well as with the applicant’s signatures on the following:

1. A nulla bona return of service dated 3 June 2010;

2. A supplementary affidavit of the applicant dated 27 July 2009;

3. A supplementary affidavit of Killik dated 27 July 2009;

4. Annexures to the applicant’s supplementary affidavit; and

5. A confirmatory affidavit of Ms Kirsten Lucy Gross (an employee of applicant’s attorney, Mr D Ackerman), dated 27 July 2009.

[33] The joint conclusion of Messrs Bester, Cloete and Greenfield was that the applicant signed all the six deeds of suretyships after comparing his undisputed specimen signatures with the signatures on the six deeds of suretyship. The respondent’s mentioned experts expressed the view further that had Hattingh been provided with specimen signatures containing the applicant’s full range of signatures, Hattingh would have reached a different conclusion in his first report. In my view, there is merit in the view of the respondent’s experts since Hattingh did precisely what was suggested in respect of four of the deeds of suretyship after he had had regard to the documentation relied on by the respondent’s experts.

[34] In his second report styled “Supplementary Forensic Report” dated 17 August 2011, Hattingh at para 2.1 stated as follows:

“I was requested to compare the signatures and initials of Mr A Botha on the disputed documents with the specimen signatures and initials to determine authenticity or forgery.”

The suggestion made by the respondent is that Hattingh, by stating the above, was in fact commencing his examination afresh. At p 284, para 3.3.1 of the same report, and in regard to Contract No. 001, Hattingh concluded as follows:

“A strong degree of resemblance exists between the disputed initials and the specimen initial, but as differences also occurs [sic] a definite conclusion cannot be reached.”

In this regard it is clear that Hattingh had abandoned the conclusion he reached in his first report.

[35] At para 3.3.2 of the second report, and in regard to Contract No. 005 of 22 April 2008, Hattingh concluded as follows:

“A degree of resemblance exists between the disputed signatures and the specimen initials, but as differences also occur, the possibility of forgery cannot be excluded.”

This was clearly not an unequivocal conclusion, and it was once more, and rightly so, argued on behalf of the respondent that Hattingh had abandoned the conclusion which he reached in his first report.

[36] At p 5, para 33.5 of the second report, and in regard to Contract No. 014 of 15 August 2007, Hattingh concluded that:

“A degree of resemblance exists between the disputed signatures and the specimen initials/signatures, but characteristics that falls [sic] outside the normal range of variation exhibited in the specimens occur in the disputed signatures. Some signatures exhibit poor, slow line quality which is indicative of forgery.”

Once more, the argument on behalf of the respondent was that Hattingh had deviated from his conclusion in his first report.

[37] Finally, regarding this second report, in regard to Contract No. 015 of 29 September 2007, Hattingh at para 3.3.5, concluded as follows:

“A degree of resemblance exists between the disputed signatures and the specimen initials/signatures, but characteristics that falls outside the normal range of variation exhibited in the specimens occur in the disputed signatures. Several signatures are formed with un-natural changes of direction and poor line quality which is indicative of forgery. The signature in the margin of page 7 differs totally from the specimen signatures/initials.”

In the first report, Hattingh had concluded in respect of all six deeds of suretyships that:

“The signatures of A Botha on the disputed documents as follow are forgeries of the person’s signature who signed the specimen signatures.”

Again, the argument on behalf of the respondent that Hattingh had in fact abandoned the conclusion he reached in his first report, is well-founded.

[38] In March 2012 the applicant filed a supplementary replying affidavit to which was annexed a supplementary forensic report of Hattingh dated 9 December 2011. This was Hattingh’s third report which was in response to the supplementary reports prepared by Messrs Bester and Greenfield on behalf of the respondent. In his report dated 24 October 2011, Bester opined with reference to Hattingh’s first and second reports, that Hattingh had expressed conflicting conclusions. In this regard, at p 4 of his said report, Bester had stated as follows:

“Hattingh never qualified his opinion of forgeries, by proving that under no circumstances could Botha have written the signatures in question. He never at any stage of the examination presented evidence which is precise, obvious and demonstrable. It is my opinion that when a Forensic Document Examiner is not able to eliminate a known writer, based on evidence in the writing, he should not eliminate that writer at all. I disagree with Hattingh that the signatures on the six Suretyship Documents are forgeries and with his further conclusions expressed in his report dated 17 August 2011. I cannot exclude the possibility that he will further change his conclusions once presented with further specimen signatures.”

[39] In his third report, Hattingh at p 2, para 2.5 admits that:

“As a result of the additional specimens which consists of initials which I did not have at my disposal when preparing the report dated 2011-05-13, my conclusions in certain respects were amended.”

This admission, on its own, casts rather serious doubts on the credibility of Hattingh’s conclusions. The contradictions, inconsistencies and the abandoning of original conclusions and concessions made by Hattingh makes reliance and acceptability of his expert opinion problematic, based on the balance of probabilities. Indeed in S v Van Dyk 1998 (2) SACR 363 (W), and with approval of the principle in Annama v Chetty and Others 1946 (A) 142 at 154, it was held, inter alia:

“that the evidence of a handwriting expert had to be approached with caution.”

In my view, the present matter is such a matter where the evidence of Hattingh ought to be approached with great care, and if done, leads to the rejection of his evidence in the circumstances of this case.

THE COURT’S APPROACH TO EXPERT EVIDENCE

[40] The approach to the admissibility of expert opinion evidence was set out in Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616E-H as follows:

“The decisions of our Courts on the admissibility of expert opinion evidence on the very issue that the Court has itself to decide do not appear to be harmonious. The usual ground for urging or deciding on its exclusion is the usurpation by the witness or the  abdication by the Court of the Court's function of adjudicating the particular issue (see, for example, R. v Herholdt and Others, 1956 (2) SA 714 (W)). Wigmore, who deals with the whole problem with his usual incisiveness in his work on Evidence, vol. VII, 3rd ed., paras. 1917 to 1929, pours scorn on this reason for exclusion in para. 1920:

'This phrase (about usurpation) is made to imply a moral impropriety  or a tactical unfairness in the witness' expression of opinion. In this respect the phrase is so misleading, as well as unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric. There is no such reason for the rule, because the witness, in expressing his opinion, is not attempting to 'usurp' the (court's) function; nor could he if he desired.'

The reason given is that the Court is not bound by his opinion; it is still free to reject it and decide the issue for itself. In para. 1923  the learned author maintains that the true and practical test of the admissibility of the opinion of a skilled witness is whether or not the Court can receive 'appreciable help' from that witness on the particular issue; in other words, 'the test is a relative one, depending on the particular subject and the particular witness with reference to that subject'.”

This approach was followed in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at paras [34] and [36] respectively, as follows:

“[34] … However, it is perhaps as well to re-emphasise that the question of reasonableness and negligence is  one for the Court itself to determine on the basis of the various, and often conflicting, expert opinions presented. As a rule that determination will not involve considerations of credibility but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the Court's reaching its own conclusion on  the issues raised.”

And at para [36]:

“That being so, what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning. That is the thrust of the decision of the House of Lords in the medical negligence case of Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232 (HL (E)). With the relevant dicta in the speech of Lord Browne-Wilkinson we respectfully agree.”

More recently in Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC) at p 212, Davis J said:

“In short, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess.”

See also Guardian National Insurance Co Ltd v Springgold Investments (Pty) Ltd [2010] 1 All SA 301 (SCA) at para [23].

[41] Based on the above principles, I am satisfied that the applicant’s continued reliance on Hattingh’s expert reports is misplaced. As argued by the respondent, in his reports of 13 May 2011 and 17 August 2011, Hattingh makes no mention that the signatures of the applicant are an abridged version of the applicant’s name, and that his initials do not comprise the first letters of his names and surname. Hattingh’s charts show clearly that the abridged version of the applicant’s signature and his initials are very similar, and that the difference between them is minimal. It is trite that one is not obliged to sign in the same way with every signature one writes. It is purely as an expediency that the contrived piece of handwriting that is adopted is used for security and convenience sake. The documents made available to the opposing experts indeed show that the applicant’s signature does vary and that the same format is also used as his initials. The evidence of Hattingh does not convincingly exclude the rather high probability that the applicant signed all the deeds of suretyship.

[42] On the other end of the scale, the opinions of the respondent’s expert witnesses, in particular Bester and Greenfield, to the effect that the applicant indeed signed all the disputed deeds of suretyship, show logical reasoning. These opinions in criticising Hattingh’s conclusions, are well-founded, more probable and credible. In fact, these opinions truly make sense.

ARGUMENTS ADVANCED IN APPLICANT’S HEADS OF ARGUMENT

[43] In the applicant’s heads of argument several arguments are advanced. The main attack is against the acceptance of the evidence of the respondent’s expert witnesses. For the reasons advanced above, I am not persuaded that there is merit in the criticism. It is also argued that there are material disputes of fact in the application that indicate a referral of the judgment application to trial or to the hearing of oral evidence. The reasons for the submission are that, notwithstanding the limited ambit of the parties’ dispute, to refer the rescission application to oral evidence will not result in the final determination of the entire matter and the judgment application will remain unresolved. It is suggested that, alternatively, the judgment be rescinded and the judgment application be referred to trial as the only practical option. On the other hand, although it is conceded that the judgment might have been obtained validly in accordance with the rules and procedures of Court, fraud, if found to exist, unravels all. In this regard, reliance is placed on Emfuleni Local Municipality v Builders Advancement Services CC and Others 2010 (4) SA 133(GSJ) at para [13]. To the extent necessary, I deal with some of these arguments immediately below.

[44] I have already found that on the affidavits collectively, barring the expert evidence, the applicant has not made out a case for rescission. I also found, on the same basis, that there are no genuine disputes of fact which are irresolvable on the affidavits. In addition, the conflicting expert evidence, as discussed above, does not manifest disputes of fact which are insoluble on paper. Indeed, the credible evidence show plainly that the applicant’s signatures on his personal suretyships could not have been forged at all. The allegation of fraud or forgery has not been proved, and remains highly disingenuous, speculative and dilatory. I agree, respectfully, with the submission of the respondent’s counsel that it will be pointless to refer the alleged disputes between the experts to oral evidence or trial since the remaining evidence conclusively shows that the respondent was not involved in any forgery. This is so, even if the applicant’s signature on his suretyships was forged. This matter has a long history of litigation between the parties, and it is plainly in the interest of justice and all the parties involved that finality be reached. The respondent is entitled to have the dispute with the applicant brought to finality without further unnecessary delays.

[45] The reliance by the applicant on the Emfuleni Local Municipality matter, supra, is misplaced in the circumstances of the present matter. The applicant has not proved any fraud on the part of the respondent, its employees or any other person associated with it. In any event, the matter of Emfuleni Local Municipality subsequently came before a Full Court of this High Court on 15 March 2012. In the judgment handed down on 23 March 2012, the eviction order sought by the applicant was granted. There was no proof of fraud whatsoever.

CONCLUSION

[46] For all the aforegoing reasons, I conclude that the present application for rescission is fatally flawed. It calls to be dismissed. However, if I am incorrect in my determination of the issue of disputes of fact, the applicant ought to have foreseen, and in fact he knew, that he could not succeed on affidavits, and that the matter would have to be referred to oral evidence if he were to succeed at all. This conduct on the part of the applicant is an added reason for the Court to refuse his submission for a referral to oral evidence or to trial. In this regard see Tamarillo v B N Aitken (supra) at 430G-431A. The applicant should properly have proceeded by way action and not motion proceedings. For this reason too, the application ought to fail.

COSTS

[47] I deal with the issue of the costs. The respondent has achieved substantial success. There is no reason why the costs should not follow the result. However, the respondent has urged on me to award costs on a punitive scale based on what the respondent termed the applicant’s unsubstantiated and reckless accusations of criminal conduct on the part of the respondent bank. Although this seems to be an attractive proposition at first blush, I am, however, not entirely convinced that such order would be fully justified. The respondent has also asked for costs of three counsel. I did not understand counsel for the applicant to resist this request in the event the instant application failed. There is merit in the request, for a number of reasons. The matter was a special allocation. Although essentially a rescission application, it is by no means uncomplicated. It involves about R103 million. The papers are bulky, contained in about 15 arch lever files. There was protracted litigation between the parties, including sequestration proceedings; money judgment proceedings; an application by the applicant to re-open his case; leave to appeal applications; postponement applications; and an application for the extension of the provisional sequestration order. In my view, all these issues are such as were referred to, inter alia, in Fisheries Development Corporation v AWJ Investments 1980 (4) SA 156 (W) at 172H. It was also a “wise and reasonable precaution” on the part of the respondent to appoint three counsel in the present application. See Enslin v Vereeniging Town Council 1976 (3) SA 443 (T) at 453E-F. In the exercise of my discretion, the employment of three counsel was justified. The provisional order for the sequestration of the applicant’s estate, which currently stands extended to 24 July 2012, ought to be extended further to be dealt with in the normal manner in due course.

ORDER

[48] In the result the following order is made:

48.1 The application for rescission is dismissed.

2. The applicant is ordered to pay the costs of the application on the opposed party and party scale. The costs shall include the costs occasioned by the employment of three counsel.

2. The provisional order for the sequestration of the applicant’s estate is extended to 21 August 2012.

_____________________________

D S S MOSHIDI

JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

COUNSEL FOR THE APPLICANT: I MILTZ SC

ASSISTED BY : J J BITTER

INSTRUCTED BY: DARRYL ACKERMAN ATTORNEYS

COUNSEL FOR THE RESPONDENT: W TRENGOVE SC

ASSISTED BY : M ANTONIE SC

ASSISTED BY : A BERKOWITZ

INSTRUCTED BY: FARBER SABELO EDELSTEIN

DATE OF HEARING: 21 MAY 2012

DATE OF JUDGMENT : 24 JULY 2012

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