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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 32517/13

Date: 14 August 2014

In the matter between:

ABSA BANK LIMITED.......................................................................................................................Applicant

and

MARIA ELIZABETH SMITH..........................................................................................................Respondent

JUDGMENT

BAM J

1. The applicant applied for an order compelling the respondent to pay three separate amounts, respectively R75 661.38, R654 450.59 and R282 480.38, with interest at 9% per annum from 8 October 2012 and costs on the attorney and client scale. The application is opposed.

2. The applicant's case is based on three instalment sale agreements and Neelmarie Trust, "the Trust", referred to as the Principal Debtor, in terms of which agreements the applicant sold certain goods, in short referred to as a Krone Baler, a MAN truck and a trailer, to the Principal Debtor. The goods were duly delivered. It is alleged by the applicant that the Principal Debtor failed to make punctual monthly payments to the applicant and that it fell into arrears, respectively in the aforesaid amounts. The applicant stated that the agreements were cancelled due to the Principal Debtors mal-performance and that the full amounts outstanding, as reflected above, are due and payable.

3. The respondent's liability flows from the fact that on 11 January 2008 the respondent bound herself as surety and co-principal debtor with the principal debtor.

4. The respondent, in opposing the application, attacked the applicant's case on a broad front.

5. The applicant alleged that it complied with all formal requirements including the provisions of section 129 of the National Credit Act, No. 34 of 2005.

In this regard the respondent denied that the notice in terms of the provisions of section 129 had been received.

It however appeared from the papers that the Notice was sent to the domicilium address of the respondent.

6. The next point was that the deponent to the applicant's founding affidavit was not properly authorized to depose to the document and/or that he had no knowledge of the matter.

In the applicant's founding affidavit the deponent thereto stated that he is a manager of the applicant, which is a financial credit provider and a commercial bank, trading as such.

In my view the deponent to the founding affidavit was therefore clearly in a position to validly depose to the affidavit. This point taken by the respondent is without merit and need no further discussion.

7. The second point was directed at the alleged second agreement entered into by the Applicant and the Trust. It was pointed out by the respondent that it appears from Annexure B to the applicant's founding affidavit, the second agreement, that it was concluded on 9 April 2009 and not 1 April as alleged by the applicant, and that it is also not clear whether it was concluded in Witbank or Middelburg. In the latter regard the respondent pointed out that the applicant purported to have signed in Middelburg and on the same day it was signed on behalf of the Trust in Witbank. The respondent further stated that the applicant failed to say who represented the Trust and whether that person was in fact authorized to do so.

8. A further attack on the said agreement involved that the respondent contended that it is "abundantly clear" that she did not sign the agreement, Annexure B to the founding affidavit, and that she further denied that the person who purportedly signed the agreement on behalf of the Trust had authority to bind the Trust. In this regard the respondent referred to the trust deed which provides that at all relevant times there should be not less than three trustees, which, according to the respondent, was not the case in that one of the trustees, Ms Estelle Keet, who had resigned on 16 May 2005, had not been replaced. After the resignation of Estelle Keet, the Master authorized one Cornelius Rudolph Smith and Maria Elizabeth Smith (Respondent) to act as trustees. (Both persons were in any event initially appointed as trustees.) According to the respondent, on the days the three sale agreements were signed, respectively 6 February 2006 and 9 April 2006, there were only two trustees of the Trust in office and that the Trust was therefore incapable of entering into the sale agreements.

9. The respondent's denial that she signed the agreements in question, is of no avail to her. However, after the two acting Trustees were appointed by the Master on 16 May 2005, the Trust clearly had full legal capacity to enter into agreements. The agreements were signed on behalf of the Trust. The respondent's bold denial that her signature appears on the deed of Trust is of no avail. Par 10.2 of Suretyship provides that the surety bore the onus in the event of denying any liability in terms of the surety agreement. It does not require the opinion of a handwriting expert to establish that the signature of the person who signed on behalf of the Trust on the three agreements in question clearly resembles the signature of Mr Smith, the other trustee, who signed the trust deed, annexure RAA 2 to the answering papers. The respondent did not address this issue neither did she attach an affidavit by Mr Smith in that regard, explaining his signature on the agreements.

10.In my view there was accordingly no reason to doubt the validity of the agreements.

11. In regards to the factual situation in respect of the first claim, concerning the Krone Baler, the respondent in the answering affidavit stated that the apparatus was repossessed by the applicant in April 2011 and sold for an amount of R79 059.00, which amount would have wiped out any indebtedness under that agreement. It was confirmed by the applicant's attorneys by Email on 4 July 2014, (Annexure RAA 3 to the opposing affidavit) that the apparatus had been sold for the said amount. In the applicant's replying affidavit it was admitted that the item was sold for the amount as alleged by the respondent but that the Amount of R75 661.38 claimed by the applicant actually represented further costs such as collection costs, legal fees, and additional interest for which the Trust remained liable. The obvious difference in the two versions of the applicant in respect of the cause of action were explained by the applicant.

12. A further point taken by the respondent was that the applicant failed to give notice in terms of the provisions of section 129(l)(a) of the National Credit Act and that it further failed to comply with the provisions sections 123(1) and (2) of that Act, and that it never provided the Trust with a notice setting out the estimated value of the Krone Baler.

On 28 February 2013 (Annexure G to the founding affidavit) the Trust was informed of the applicant's intention to cancel the agreements due to the arrears. It was also stated by the applicant that in terms of the agreements it was, in the event of a breach thereof, entitled to cancel same without any notice.

13. In regards to claims B and C, concerning the MAN truck and the trailer, the respondent stated that in April 2011 both items were also repossessed by the applicant. These items were subsequently sold for R98 587.2 and R13 315.20 respectively, which amounts, according to the respondent, were not taken into account in the Certificate of Balance. In the replying affidavit the applicant confirmed that the correct outstanding amount is reflected in the said document.

14. The respondent admitted that she bound herself as surety for and coprincipal debtor with the trustees of the Trust. What is clear is that at the time the agreements in question were signed, the respondent and Cornelius Rudolph Smith, on her own version, had already been appointed, on 16 May 2006, as trustees of the Trust. Clause 6.4 of the Trust deed provides that in the event the number of trustees becomes less than three, the remaining trustees would be entitled to appoint another to satisfy the quorum of three. It appears therefore that the respondent and Mr Smith, at the time Ms Keet resigned as a trustee elected to remain the only trustees and not to appoint a third as they were entitled to do.

15.What further appears from the deed of trust is that the respondent, in her capacity as trustee, was duty bound to be in control of all the possessions and the business of the Trust. That clearly involved the use of the machines in question.

16.lt follows that the respondent has not advanced any grounds upon which she can escape liability for the Trust's debts, however limited to the amount reflected in the suretyship.

17. The security deed provides for costs on the attorney and client scale. There is no reason why it should not be allowed.

18.Accordingly an order is made in accordance with the draft order attached "X".

AJ BAM

JUDGE OF THE HIGH COURT

12 August 2014

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION: PRETORIA)

Case number: 32517/2013

Before the Honorable Judge Bam

On this the 5^th day of August 2014

In the application between

ABSA BANK LIMITED.....................................................................................................................Applicant

and

MARIA ELIZABETH SMITH.......................................................................................................Respondent

DRAFT ORDER

Having perused the papers in this matter and having heard counsel on behalf of the parties the following order is made an order of Court:

1. The Respondent is ordered to pay to the Applicant, in terms of claim A, B and C, the following:

1.1 An amount of R770 000.00;

1.2 An amount of R154 000.00; and

1.3 Such further amounts with regard to interest and costs already incurred or to be incurred up and until date of payment of the amounts set out in prayer 1.1- and 1.2-supra.

2. Interest on the amounts set out in prayer 1 -supra at the rate of 9% per annum from 8 October 2012 to date of final payment;

3. Costs of suit on the attorney and client scale.

BY ORDER: REGISTRAR OF THE COURT

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