The plaintiff (respondent) alleged that after her husband's death, while in a vulnerable psychological state, she was inveigled by an insurance representative into investing in a trust and unknowingly became a trustee. In October 1998, the defendant bank sued the plaintiff in magistrate's court for R75,525.08 allegedly owed by the trust, citing her both as trustee and personally based on a deed of suretyship she allegedly signed. She filed an affidavit stating that she had signed documents in early 1998 without reading them or understanding their nature, including the suretyship. While the summary judgment application was pending in the magistrate's court, the bank, without court sanction, called up and retained proceeds of four investment policies held by the plaintiff with Sanlam totaling R206,907.00 during November and December 1998. The bank purported to act under parate executie clauses in deeds of cession whereby the plaintiff had allegedly ceded the policies as security for the trust's debt. The plaintiff then instituted action in the High Court claiming the amount of R206,907.00, alleging the parate executie clauses were unconstitutional and invalid under section 34 of the Constitution.
The appeal succeeded. The order of the court a quo granting summary judgment was set aside. The application for summary judgment was refused, the defendant was granted leave to defend, and the costs of the summary judgment application were ordered to be costs in the action. No order was made as to the costs of the appeal, given that both parties shared blame for the misdirection of the proceedings.
Parate executie clauses in security agreements are not per se unconstitutional or in conflict with section 34 of the Constitution. The common law permits stipulations for parate execution provided they are not contrary to public policy. A contractual provision will be found contrary to public policy only when there is a probability that unconscionable, immoral or illegal conduct will result from implementation of the provisions according to their tenor. Where a contractual provision is capable of implementation in a manner against public policy but the tenor of the provision is neutral, the offending tendency is absent and the contract stands, though a court may refuse to give effect to unconscionable implementation. Summary judgment should not be granted where the defendant has not had a fair opportunity to present all relevant facts and circumstances due to a shared misunderstanding of the applicable law by the parties and the court, particularly where that misunderstanding was based on acceptance of a High Court judgment subsequently found by the Supreme Court of Appeal to be incorrect.
The court noted that the severe censure by the court a quo of the bank's conduct may well prove to be justified, but this could only be determined upon consideration of all relevant facts and circumstances. The court expressed reluctance to rule on whether the particulars of claim were excipiable or whether the action was based on actio ad exhibendum, as these points were not raised in the court a quo, not covered in the grounds of appeal, and not fully argued. The court commented that the defendant's answering affidavit was "unfortunately not as comprehensive as it should have been" but this was understandable given the circumstances. Erasmus AJA noted that cession agreements do not expressly authorize the bank to be arbiter of whether a debt is owing, nor do they purport to allow bypassing of courts in disputes regarding existence or validity of cession agreements, but emphasized this does not automatically mean the defendant's actions in reliance on those clauses were lawful.
This case is significant in South African law for definitively confirming that parate executie (extra-judicial execution by a creditor) is not per se unconstitutional or in conflict with section 34 of the Constitution, thereby settling uncertainty created by the Eastern Cape High Court decision in Findevco. The judgment clarifies that contractual provisions allowing parate executie are valid provided they are not contrary to public policy (applying the test from Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)). The case establishes important principles regarding when contractual provisions will be found to have an objectionable tendency toward unconscionable conduct versus when the provision itself is neutral but its implementation may be challenged. It also demonstrates the court's approach to summary judgment applications where proceedings have been misdirected due to a shared misunderstanding of the law, showing flexibility in the interests of fairness when facts have not been fully canvassed due to acceptance of a subsequently overturned precedent.
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