THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  530/07
NO PRECEDENTIAL INTEREST

In the matter between:

BRAND HOUSE (PTY) LTD                                                         APPELLANT

and

SASFIN BANK LTD                                                                  RESPONDENT

BRANDHOUSE BEVERAGES (PTY) LTD                                   APPELLANT

and

SASFIN BANK LTD                                                                  RESPONDENT

Neutral citation:
Brand House v Sasfin Bank (530/2007) [2008] ZASCA 96
(16 September 2008).

Coram:
Cloete, Maya et Cachalia JJA
Heard:
8 September 2008
Delivered:
16 September 2008

Summary:   Summary judgment. Appellants disclosing bona fide defence.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:  High Court, Cape Town (Thring J sitting as court of first
instance).

The following orders are made:

(1)
The appeals are allowed, with costs.

(2)
The orders of the court below are set aside and substituted, with the
following orders:

(a)
Under CPD Case No: 2241/2007 (the Brand House claim):

‘(i)
The application for summary judgment is refused.

(ii)
Leave to defend the action is granted to the defendant.

(iii)
The costs of the summary judgment application are reserved.’

(b)
Under CPD Case No: 2242/2007 (Brandhouse Beverages):

‘(i)
Summary judgment is granted in the sum of R367 924.37
together with interest thereon at the rate of 15,5 per cent per
annum a tempore morae.

(ii)
Save as aforesaid, the application for summary judgment is
refused.

(iii)
Leave to defend the action for the balance claimed is granted to
the defendant.

(iv)
The costs of the summary judgment application are reserved.’

_____________________________________________________________

JUDGMENT
______________________________________________________________

CACHALIA JA (CLOETE, MAYA JJA CONCURRING)

[1] This judgment deals with two appeals against decisions by Thring J
given in the Cape High Court, whereby he ordered summary judgment, at the
instance of Sasfin Bank Ltd, against Brand House (Pty) Ltd in the sum of
R316 299.77 together with interest and costs, and against Brandhouse
Beverages in the sum of R1 024 773.36 also with interest and costs. These
appeals are with leave of the court below. It will be convenient to refer to the
appellants, where appropriate, individually as Brand House and Brandhouse
Beverages and, to the respondent, as Sasfin.

[2] The appellants, who appear to be associated companies, have
separate accounts with Sasfin arising from a cession agreement between
Sasfin and Clickrite Gauteng (Pty) Ltd in terms of which Sasfin took over
Clickrite’s claims against them. These claims relate to goods sold and
delivered by Clickrite to the appellants. The main issue before us (as in the
court below), concerns whether, in disputing Sasfin’s quantification of the
claim against each of Brand House and Brandhouse Beverages, they
disclosed a bona fide defence. In both cases the summons was supported by
a trade creditor’s statement, which set out how the amounts, for which
summary judgment was sought and granted, were calculated. In its particulars
of claim Sasfin averred that these statements reflect all of the amounts the
appellants have paid and that the balances accordingly represent the deficit,
ie the amounts still owing.

[3] The affidavits opposing summary judgment in the two matters,
deposed to by one Maria Christina Juul, who describes herself as the ‘Client
Liaison Officer’ of the appellants, are identical. In both, she pertinently denies
that the statements attached to the particulars of claim ‘are a full record of all
of the payments made’. To corroborate this allegation she attaches a
reconciliation statement which, she says, ‘reflects all payments made’ to
Sasfin. The clear implication of these statements is that payments over and
above those taken into account by Sasfin were made. It is contended on
behalf of the appellants that the information appearing in the reconciliation
statement reveals that Sasfin owes Brand House R155 600. 92, while

Brandhouse Beverages owes Sasfin R367 923.60. So Brandhouse
Beverages concedes that Sasfin is entitled to summary judgment in this
amount.
[4] In the court below, the learned judge found that as the author of the
reconciliation statement had not deposed to an affidavit, its contents for this
reason constituted hearsay evidence and were thus inadmissible. He also
found that the contents of the reconciliation statement were neither clear nor
readily intelligible and that there were discrepancies between it and Ms Juul’s
affidavits. He noted that all that the appellants were able to aver was that their
combined indebtedness did not exceed the sum of R212 322.65 and that they
were unable to specify the extent of each of their indebtedness to Sasfin.
(This amount was arrived at by deducting the R155 600.92 allegedly owed by
Sasfin to Brand House from the R367 923.60 which Brandhouse Beverages
concedes it owes to Sasfin.) And further, the judge observed that counsel,
who appeared on behalf of the appellants in the court below, was not able to
provide any further elucidation in argument. He thus held that these
shortcomings meant that the appellants had not established that either had a
bona fide defence to Sasfin’s claim.

[5] For present purposes it is not necessary to deal with the contents of
the reconciliation statement in any detail. I accept that the reconciliation
statement is not a model of clarity. And I can readily comprehend the judge’s
difficulty in deciphering the appellants’ quantification of the relevant amounts.
However, in this court, counsel for the appellants undertook a thorough
analysis of the reconciliation statement, both in their heads of argument and
during oral submissions in elucidation of Ms Juul’s opposing affidavit. Properly
understood the reconciliation statement shows the dates on which the
appellants allege that amounts of invoices Sasfin claims were outstanding,
were paid. Despite this counsel for Sasfin persisted in his submission that
neither Ms Juul’s affidavits nor the reconciliation statement indicated clearly
that the appellants had paid the full amounts owing. In my view the
submission is unmeritorious. Not only have the appellants now clearly and
fully explained their calculations but, by conceding that the amount of
R367 923.60 is owing by Brandhouse Beverages to Sasfin, have also

demonstrated their bona fides. In my view, this is sufficient to overcome the
threshold for resisting summary judgment.
[6] Concerning the finding by the court below that the reconciliation
statement attached to Ms Juul’s affidavit constituted inadmissible hearsay
evidence and also Sasfin’s submission that her designation does not suggest
that she has any personal knowledge of the facts, I am constrained to
disagree. She says in clear terms that she has personal knowledge of the
facts and even if she was not the author of the document she was able to
verify its contents. The reconciliation statement was therefore admissible. (Cf:
Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 424.)

[7] I turn to the question of costs. In the court below the appellants were
not represented by the same counsel as in the appeal. And the court’s
observation that counsel was not able to explain the payments reflected in the
reconciliation statement indicates that the appellants, by possibly failing to
present their case properly in the court below, may have been the authors of
their own misfortune. But the full facts of what occurred in the court below are
not before us. It is therefore appropriate to reserve the costs in that court and
counsel were agreed that such orders should be made in the event that the
appeals succeeded. However, it would have been clear to Sasfin, having
received the appellants’ heads of argument in the appeal, that Brand House
indeed raised a defence and Brandhouse Beverages a partial defence to its
claims. It must therefore bear the costs of having persisted in this appeal,
although the employment of two counsel was not in my view justified.

[8] The following orders are made:

(1)
The appeals are allowed, with costs.

(2)
The orders of the court below are set aside and substituted, with the
following orders:

(a)
Under CPD Case No: 2241/2007 (the Brand House claim):

‘(i)
The application for summary judgment is refused.

(ii)
Leave to defend the action is granted to the defendant.

(iii)
The costs of the summary judgment application are reserved.’

(b)
Under CPD Case No: 2242/2007 (Brandhouse Beverages):

‘(i)
Summary judgment is granted in the sum of R367 924.37
together with interest thereon at the rate of 15,5 per cent per
annum a tempore morae.

(ii)
Save as aforesaid, the application for summary judgment is
refused.

(iii)
Leave to defend the action for the balance claimed is granted to
the defendant.

(iv)
The costs of the summary judgment application are reserved.’

_________________
A CACHALIA
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT: J C BUTLER;

L A VAN DER WESTHUIZEN

INSTRUCTED BY: CLIFFE DEKKER INC; CAPE TOWN

CLAUDE REID INC; BLOEMFONTEIN

FOR RESPONDENT:
A SUBEL SC;

JT LOUW

INSTRUCTED BY: RELIHAN, MANAMELA & MAYER; JOHANNESBURG

LOVIUS BLOCK; BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
16 September 2008

Status: Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal

BRAND HOUSE (PTY) LTD
v
SASFIN BANK LTD

The Supreme Court of Appeal (SCA) today allowed appeals by Brand House (Pty) Ltd
and its associated company Brandhouse Beverages (Pty) Ltd against decisions given
by the Cape High Court, whereby it ordered summary judgment at the instance of
Sasfin Bank Ltd in the sum of R316 299.77 and R1 024 773.36 respectively against
them.

The SCA found that Brand House and Brandhouse Beverages had presented sufficient
information before the court to justify their assertion that they had a bona fide defence
to Sasfin’s claims. But it found that Brandhouse Beverages had conceded that it owed
Sasfin an amount of R367 924.37, which represented part of the total amount claimed.
So the SCA granted summary judgment against Brandhouse Beverages in this
amount.

Brand House and Brandhouse Beverages were thus granted leave to defend Sasfin’s
actions against them. Sasfin was ordered to pay the costs of the appeal.