(A)
In the matter between:
									CASE NO: 20896/2010

and

'B'

									CASE NO: 22331/2010
In the matter between:

and

'C'

									CASE NO: 24607/2010

In the matter between:

JUDGMENT: 27 SEPTEMBER 2011

E STEYN J

3] At the hearing of the matters on 23 May 2011 the application for rescission of the judgment under case no 24892A was not proceeded with and there was no opposition to the application to have the stipulated immovable property declared executable under case no 3895. The court accordingly issued orders refusing the rescission of the judgment and declaring the relevant immovable property executable. The judgment in favour of Nedbank in respect of the refusal to grant a rescission of the judgment in case 24892A, effectively rendered a final judgment against the principal debtor in that matter.
4] Initially there were no opposing papers filed under case no 24607/2010, a summary judgment application relating to the development at Romansbaai. Details relating to the defendants in this matter appear in the heading above. In this matter, often referred to as the 'Stratford Trust' matter, trust relief is sought against two sureties, jointly and severally, who are liable for 75% of the principal debt.
5] During the hearing of the matter I was advised that opposing affidavits in the Stratford Trust matter had been filed late on the plaintiff. At my request I received a copy of the opposing papers in due course. No heads of argument were filed on behalf of the defendants in the Stratford Trust matter. The defendants' counsel in all these matters, Mr Patrick, informed the court that he had been briefed to argue the matter, but he conceded that he could not argue any particular defences on behalf of the sureties in the Stratford Trust matter. He submitted however that the points and arguments that were raised in case 22331/2010, the so-called 'Mostert application', on behalf of the principal debtor, also applied in the Stratford Trust matter.
6] The heads of argument on behalf of the defendants in the remaining two applications for summary judgment were filed one or two court days before the hearing, nearly a week late. Counsel for the defendants apologised in his heads of argument for the late filing and noted that he had been briefed late and had then been instructed that the parties were endeavouring to settle the matters. Plaintiff's counsel requested that the matters should proceed.
7] In the Stratford Trust matter, which relates to the Romansbaai development, one of the issues raised by the defendants was that the liabilities of the two defendants are joint and several and that Nedbank could not take judgment against both defendants for the full amount. I was advised by plaintiff's counsel, Mr Muller, that Nedbank in fact only sought judgment against both sureties jointly and severally, as appeared from the original Particulars of Claim. Despite the absence of opposing affidavits by defendants in this matter, this aspect had been conceded in the heads of argument filed on behalf of Nedbank.
8] Case 22331/2010, the Mostert application, is a summary judgment application also relating to the Romansbaai development where relief is sought against two of the sureties who are jointly and severally liable for the remaining 25% of the principal debt. One of the defences raised by defendants in this matter is that the claim for summary judgment is inconsistent with the prayers in the Particulars of Claim. This defence was conceded in the heads of argument filed on behalf of Nedbank and plaintiff accordingly sought judgment for the lesser relief as stated in the Particulars of Claim, namely against the first and second defendants jointly and severally, the one paying the other to be absolved.
9] Other defences raised on behalf of the defendants in the three summary judgment applications that I will deal with hereunder, were:
9.1] A reliance on the alleged lack of knowledge by Ms Smalberger, attesting on behalf of Nedbank, with regard to the basis of her personal knowledge regarding Nedbank's claims against the defendants;

9.2]   a claim that summary judgment was requested prematurely; and

9.3] a reliance by all the defendants on a claim by certain defendants, as plaintiffs, against Nedbank, as first defendant (of seven defendants), contained and set out in case no 5131/2010, in the North Gauteng High Court, Pretoria.

11] The examination of the defences of the defendants in the summary judgment applications entail an enquiry to establish whether there are facts sufficiently disclosed by the defendants to show that summary judgment should be refused.
The second leg of the enquiry is whether the defences are good in law, more particularly as regards an alleged potential counterclaim. Thirdly the court is at liberty to consider exercising a discretion in favour of the defendants. The plaintiff in these three matters does not object to insufficient disclosure, but rather complains that defendants did not advance a defence or counterclaim that is good in law.

14] In the premises Ms Smalberger submitted that she could and did swear positively to and verified the facts, causes of action and amounts claimed in the various summonses. The allegations contained in her affidavits comply with the requirements set out under High Court Rule 32 (2).

16] There is nothing contained in Smalberger's affidavits that casts doubt on the question as to whether she in fact has the requisite personal knowledge. As argued on behalf of Nedbank, I agree that Ms Smalberger was ostensibly personally extensively involved in agreements and amendments to original agreements and was able to rely on bank records and documents regarding original agreements, an aspect that has not been disputed by defendants. Accordingly this defence is rejected as unfounded.

Rectification in Summary Judgment:

17] In case 20896/2010 the defendants contend that it is not competent for the court to grant summary judgment on a claim for rectification. The prayers relating to rectification under this case are to rectify the acknowledgement of debt and loan agreement by changing the number '401' and substituting it with '402', (this amendment relates to the number of an immovable property) and to rectify the deed of suretyship by changing 'IC Stratford Trust' to 'IC Stratford Family Trust'.
18] It was argued and pointed out on behalf of plaintiff that the error that plaintiff sought to rectify was a clear, patent error, which only appeared in the Notice of Intention to Apply for Summary Judgment. The error was not continued in the affidavit filed in support of any of the applications. In her affidavit Ms Smalberger correctly confirmed the allegations, cause of action and quantum claimed from defendants as contained in the Particulars of Claim. There is no dispute that the agreements stand to be rectified as alleged and Mr Ivor Stratford ('Stratford') himself,on behalf of the defendants, confirms this in his affidavit in respect of the acknowledgement of debt, the loan agreement and the suretyship.

Mala fides.

Extension of loan term.

21] In case 20896/2010 Stratford contended on behalf of the defendants in that matter that the defendants were given an extension of one year to repay Nedbank on certain conditions. The extension was allegedly given telephonically to a Mr Hennie Pretorius, the CEO of the Pinnacle Point Group of companies. Since no confirmatory affidavit was filed by Pretorius, this allegation amounts to inadmissible hearsay evidence and in any event the allegations are contrary to non-variation clauses in the relevant Mortgage Bond, Acknowledgement of Debt and loan agreement.
22] Stratford alleges that this extension also applies to the Romansbaai development, but no mention thereof is made in the relevant cases, being case no 24896A/2010 and case no 22331/2010. In case 20896/2010 Mr Mostert filed a confirmatory affidavit, but in case 22331/2010, where he was a deponent, he omitted any reference of this so-called extension that was allegedly applicable to both developments and in fact the contents of his affidavit in that matter are contradictory to any such extension.
23] This aspect was not argued on behalf of defendants at the hearing of the matter and I agree with plaintiff that this allegation is so inherently implausible and unreliable that it does not constitute a basis to refuse summary judgment.

Wrongful conduct/potential counterclaim.

24] The defendants allege certain facts upon the basis of which they claim that Nedbank's actions caused the principal debtors in these matters to be unable to repay Nedbank. The Pinnacle Point Group of companies, ('PPG') (which group of companies includes Danger Point), some of whom are included among the defendants in the summary judgment applications, have taken action against Nedbank in the North Gauteng High Court under case no 5131/2010, alleging that the wrongful conduct of Nedbank, of which the defendants complain, has caused huge financial losses to them.
25] Our courts have held that a debtor can rely on the wrongful conduct of its creditor to excuse its failure to perform, where the conduct of the creditor has made performance by the debtor impossible.

27] In cases 24892A, 20896 and 22331 the defendants make detailed allegations regarding the alleged manipulation of share prices by Nedbank and the alleged contravention of legislative requirements by them relating to the control of companies. It is submitted that Nedbank failed to make certain disclosures and that its conduct in doing so manipulated share prices so as to over-inflate the value of the currency comprising PPG shares.

29] On behalf of Nedbank it was argued that the allegations by defendants might have amounted to a claim in reconvention for unliquidated damages by some of the sureties, but that it cannot be considered as a claim in reconvention in these matters presently before court, as it is not being asserted as one in the cases presently entertained by this court and therefore, those defendants to whom the North Gauteng matter relates, cannot raise it as a defence in these proceedings. It is argued that the reported decisions relied on by defendants, would only apply if the claims asserted in the North Gauteng court were asserted in the matters presently before court and as that claim is not asserted in the actions before court, it cannot be considered as a defence in any of the actions before this court.
30] On behalf of the defendants it was submitted that a counterclaim already seriously pursued and not merely in answer to an application for summary judgment stands to be accorded more weight and not less weight than a counterclaim raised for the first time at the summary judgment stage. It was pointed out that the defendants allege that Nedbank's wrongful conduct caused the inability of theprincipal debtors to repay Nedbank and a debtor will enjoy a direct defence where the debtor can rely on the creditor's wrongful conduct to excuse his/her failure to perform or where the creditor has made performance by the debtor impossible. Mr Patrick argued that the categorisation of the defence is not clear and that Brand J stated in the Hancock matter that the defence was one of impossibility, able to be objectively demonstrated by a debtor. This is however not an issue to consider in a summary judgment application.
31] Mr Muller argued that in the present matters before court, the defendants have not shown an objective impossibility to pay their debts and he further, correctly in my view, disagreed that the categorisation of the defence was not clear. He pointed out that the learned Judge had found that the debtor had a defence where the wrongful conduct of a creditor made performance by the debtor impossible, but Brand J, as he then was, continued to find:
'I believe, however that this situation constitutes the defence of supervening impossibility. In order to succeed with this defence, the debtor must prove that his/her performance became objectively, and not merely subjectively impossible....'
32] In the Hancock judgment Brand J also made it clear that the impecunious status of a debtor is not necessarily an excuse for non-payment if the debtor can show some wrongful act of comission or omission by the creditor. It was further argued on behalf of Nedbank that even in the event that this court should find that this aspect is available as a defence, the following considerations should be entertained when regard is had to the relevant Particulars of Claim and Plea in the North Gauteng High Court, namely:
32.1] The principal debtors for each of the developments, Wedgewood Village Golf and Country Estate (Pty) Ltd ('Wedgewood') and Danger Point Ecological Development Company (Pty) Ltd ('Danger Point'), are not plaintiffs and do not have claims in that action. As such, these allegations do not prevent summary judgment from being granted against Wedgewood or provide a ground for setting aside the judgment granted against Danger Point.
32.2] As regards case no 20896/2010, the allegations contained in the North Gauteng matter are only relevant in respect of second, third and sixth defendants, being the plaintiffs in the North Gauteng court case and the allegations are irrelevant as far as the other defendants are concerned. In case 22331/10 the allegations are only relevant insofar as the second defendant is concerned, who is also the plaintiff in the North Gauteng case, case 5131/2010. In case 24607/2010 these allegations have not been made, but would in any event not be relevant as the defendants are not plaintiffs in case 5131/2010.

'Die diskresie is nie beperk tot gevalle waar die teeneis beuselagtig of kwelsugtig is en ingestel word bloot om vonnis op die eis te vertraag nie. Die diskresie is wyer en die goeie redes wat 'n hof daartoe bring om dit uit te oefen ten gunste van 'n eiser is nie vooraf vatbaar vir definisie nie'.
36] Finally it was submitted, in my view correctly, on behalf of Nedbank, that the court should take the following factors into account in consideration of the exercise of its discretion, in relation to the relevant defendants only and not such defendants who did not assert any claims in reconvention, who have not established a valid defence to Nedbank's claims:
36.1] The defendants' counterclaim has not been instituted in these proceedings or even this court;
36.2] the facts or legal issues in case 5131/2010 are not common to the present proceedings before court but relate to a different set of facts and allegations;
36.3] the claims in the cases before this court are commercial loans for which the repayment date has long passed;
36.4] there is no dispute that the loans were made, monies advanced and that repayment of the money is due;

36.6] the claims relate to only some of the sureties and not the principal debtors;
36.7 it needs to be noted that Nedbank will be able to pay any judgment that may theoretically be made against it in case 5131/2010 in the North Gauteng High Court and in the circumstances there is no prejudice to defendants in this regard;
36.8] the claims were instituted long after many of the extensions to the loan agreements, i.e. the claim was raised long after the debtors had acknowledged their liability. They were aware of their alleged claims underlying the North Gauteng case months before agreed extensions to loan repayments;

38] I was requested to take into account and to consider whether this court should exercise a discretion in favour of the same parties who launched an application for a rescission of a judgment in circumstances where they had previously agreed to the judgment and where, in their founding papers before this court, they had pretended otherwise. I agree with Mr Muller that this is a factor militating against this court exercising a discretion in favour of defendants. I also agree that the answering papers of defendants indicate conclusively that their allegations relating to the rescission of judgment application were devoid of all truth. Their actions in regard to buying time with a rescission of judgment application, only to abandon such an application at the last minute, is certainly not conducive to earning the sympathy of the court, extending to the exercise of a discretion in their favour.
39] In view of the circumstances pertaining to this matter, as raised and argued on behalf of Nedbank and as set out above, neither the alleged conduct of Nedbank nor the claim instituted by certain defendants in case 5131/2010 in the North Gauteng court, should be considered as a defence in any of the applications for summary judgment before court.

41] It was argued on behalf of defendants that Nedbank's concession that it could not obtain judgment against both defendants cumulatively in matter 22331/2010, but that it could only obtain summary judgment against one paying, the other to be absolved, has the consequence that opposition to that end has been successful, warranting an adverse costs order. I do not agree with this proposition. The error of plaintiff was clearly a patent one, not contained in the body of the founding affidavits and as such not confirmed by Ms Smalberger. In addition plaintiff pointed out in its heads of argument (apparently filed even before Mr Patrick was briefed), that a mistake had been made which would be rectified at the hearing of the matter. There was no necessity in the circumstances for defendants to continue to pursue this argument or to oppose the applications due to this patent error. In the circumstances, I do not believe the plaintiff should be mulcted in costs for this error.
42] Accordingly, the orders in favour of plaintiff in each of the three matters is annexed hereto, marked 'A', 'B' and C

E STEYN J

27 September 2011

										'A'
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

								CASE NO: 20896/2010

Cape Town, Tuesday 27 September 2011 
Before the Honourable Justice E Steyn

In the matter between:

and

Having read the papers filed of record and having heard counsel for the plaintiff and counsel for the defendants,

IT IS ORDERED that:

Judgment is entered against the first to seventh defendants, jointly and severally, the one paying, the other to be absolved, for
1. Payment of the amount of R 54 974 122.50;
2. Interest thereon at the plaintiff's prime lending rate calculated daily and debited monthly on the capital balance outstanding, from 5 August 2010 to date of payment, both days inclusive;
3. Costs of suit on a scale as between attorney and client, including the costs of two counsel.

BY ORDER

REGISTRAR OF THE HIGH COURT CAPE TOWN

										'B'

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Cape Town, Tuesday 27 September 2011 
Before the Honourable Justice E Steyn

In the matter between:
CASE NO: 22331/2010

and

ORDER

Having read the papers filed of record and having heard counsel for the plaintiff and counsel for the defendants, 
IT IS ORDERED that:
Judgment is entered against the first and second defendants, jointly and severally, the one paying, the other to be absolved, for
1. Payment of the amount of R 10 285 178.68;
2. Interest thereon at the plaintiff's prime lending rate calculated daily and debited monthly on the capital balance outstanding, from 2 September 2010 to date of payment, both days inclusive;
3.     Costs of suit on a scale as between attorney and client, including the costs of two counsel.

BY ORDER

REGISTRAR OF THE HIGH COURT 
CAPE TOWN

									'C'
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

								CASE NO: 24607/2010

Cape Town, Tuesday 27 September 2011 Before the Honourable Justice E Steyn

In the matter between:

and

ORDER

Judgment is entered against the first and second defendants, jointly and severally, the one paying, the other to be absolved, for
1. Payment of the amount of R 30 855 536.04;

3.      Costs of suit on a scale as between attorney and client, including the costs of two counsel.

BY ORDER

REGISTRAR OF THE HIGH COURT 
CAPE TOWN