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[2016] ZAWCHC 7
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Sunrock Limited v Louis and Others (3863/2015) [2016] ZAWCHC 7 (5 February 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case number: 3863/2015
DATE: 05 FEBRUARY 2016
In the matter between:
SUNROCK
LIMITED
..............................................................................................................
Applicant
And
ALAN
LOUIS
...............................................................................................................
First
Respondent
ALAN LOUIS
N.O
...................................................................................................
Second
Respondent
BRIAN LOUIS
N.O
....................................................................................................
Third
Respondent
LOUIS JACOBUS CLOETE
N.O
...........................................................................
Fourth
Respondent
(Second to fourth
respondents cited in their capacities as trustees
of the Louis
Group International Foundation ([IT……….])
Before: The Hon. Mr Justice Binns-Ward
Hearing: 2
February 2016
Judgment
delivered: 5 February 2016
JUDGMENT
BINNS-WARD J:
[1]
The
applicant has applied for orders enforcing a settlement agreement and
permitting the realisation of the security that was furnished
for its
performance. The applicant and all four of the respondents were
parties to the settlement agreement, which was concluded
in England.
The first respondent was cited in his personal capacity and also, as
second respondent, in his capacity as one
of the three trustees of a
trust called the Louis Group International Foundation. His two
co-trustees, who were cited in
that capacity, are the third and
fourth respondents.
[2]
The
agreement was concluded with the object of settling litigation
between the applicant and the first respondent in the High Court
of
England and Wales for the repayment of a loan extended by the former
to the latter. The agreement provided for the execution
of a
deed of suretyship by the second to fourth respondents in their
capacity as trustees in respect of the obligations thereunder
of the
first respondent and the registration of a mortgage bond in favour of
the applicant over an immovable property in the Western
Cape that is
registered in the name of the trust.
[3]
The
settlement agreement was subject to certain conditions precedent,
which, according to the terms of the contract, were required
to have
been fulfilled within stipulated time periods. It is common
ground that not all of the conditions were timeously
fulfilled.
The parties concluded addendum agreements providing for extended
periods for the fulfilment of the conditions.
Notwithstanding
that certain of the conditions still remained unfulfilled after the
expiry of the expressly extended periods,
the parties proceeded to
implement the agreement by making and receiving certain payments in
accordance with its provisions and
by providing the contemplated
security in respect of the payment of the balance.
[4]
The
respondents have raised a number of grounds of opposition to the
application. The first is that this court has no jurisdiction
in respect of the claim against the first respondent, who says that
he resides in England. The second is that the settlement
agreement had lapsed due to the non-fulfilment within the periods
stipulated of the suspensive conditions to which it was subject.
It was also alleged that fulfilment of the suspensive condition that
required approval of the transaction by the South African
Reserve
Bank had not been proven. A fourth ground is that the agreement
qualified as a ‘credit agreement’ that
is subject to the
National Credit Act 34 of 2005
and falls, by virtue of
s 89
thereof, to be treated as void in the absence of proof that the
applicant was registered in terms of the Act as a credit provider.
[5]
As
to the first of aforementioned grounds of opposition, the founding
affidavit cited the first respondent in the following terms:
4.
The first respondent is
ALAN LOUIS
, an adult businessman who
conducts business,
inter alia
, as a trustee of a registered
trust known as Louis Group International Foundation and registered
under number [IT………]
(hereinafter referred to as
“the Trust”) with its address at Louis Group Building, 2
Boundary Road, Century City, Cape
Town, Western Cape. In terms
of the settlement agreement on which this application is based, the
first respondent chose his
domicilium citandi et executandi
at
Welcombe Manor, Warwick Road, Stratford upon Avon, United Kingdom.
[6]
The
papers were purportedly served on the first respondent at the Louis
Group building at Century City, Cape Town, on 11 March 2015.
The fourth respondent accepted the papers. The Sheriff’s
return of service reflects service as having been effected
at the
first respondent’s ‘
place of
employment…at the given address, the first respondent being
temporarily absent
’.
Service of the papers was also effected by a UK process server on the
first respondent in England, also on 11 March
2015. Paragraph 1
of the process server’s affidavit of service states:
On
the ELEVENTH day of March, 2015 I attended the home of the First
Respondent in this matter and provided a certified copy of the
notice
of motion and founding affidavit to the First Respondent.
[7]
In
response to the first respondent’s allegation that he is
resident in the United Kingdom and not in the Western Cape, the
applicant put in in reply copies of various Windeed reports showing
that the first respondent is a director of a number of South
African
companies in respect of which the records of the Companies and
Intellectual Property Commission (‘CIPC’) appear
to
reflect his residential address as either [S……], The
[P……..], [A……] Road, [B…….]
[B……], Cape Town, or more recently as [2…]
[C…..] Avenue, [C…..] [B…], Cape Town.
[8]
The
applicant contends on the basis of the latter information that there
is no genuine dispute of fact concerning the first respondent’s
residence in Cape Town. I am unable to accept that contention.
[9]
The
fact that the first respondent is a co-trustee of a South African
registered trust and a director of a number of local companies
does
not in itself connote that he is resident here. Similarly, the
fact that the CIPC records reflect that he has a residential
address
in Cape Town does not establish as a matter of fact that he resides
at the given address. The recorded information
may be incorrect
or out of date. That that is not a fanciful possibility is
borne out by the content of the UK process server’s
affidavit
quoted earlier. It would suggest that the first respondent’s
home is somewhere in England. It bears
reiteration in that
connection that the
domicilium citandi
et executandi
chosen by the first
respondent in terms of the agreement in issue in the case is also in
England. I appreciate that the choice
of a
domilicium
citandi
does not equate to a
declaration of residence at the chosen address, but it is a
contextual factor that lends verisimilitude to
the first respondent’s
evidence that he lives in England. The inherent probability is
that he would choose an address
where notice of any matter that might
be germane would come most efficiently to his attention.
[10]
The
reported cases confirm that it is not always easy to define the
concept of residence. It is well established, however,
that it
is not the same thing as domicile and also that a person may have
multiple places of residence. Whether a particular
place
qualifies as someone’s place of residence entails a factual
determination. There is no factual evidence before
this court
as to the nature and extent of the first respondent’s current
connection with either of the two addresses that
the applicant has
averred in reply might be his place of residence in this court’s
area of jurisdiction.
[11]
In
any event, in matters in which a defendant or respondent has multiple
places of residence, including a place within the area
of the court’s
territorial jurisdiction, the court will exercise jurisdiction on the
basis of that party’s status as
a resident if service is
effected on him at his residence within the court’s
jurisdiction; in other words, if he is actually
residing within the
jurisdiction when the proceedings against him are instituted; cf
Ex
parte Minister of Native Affairs
1941 AD 53
, at 58
fin
-59,
and
Mayne v Main
2001
(2) SA 1239
(SCA), at para 3(3). The UK process server’s
affidavit suggests that in the current matter the first respondent
was
at a place of residence outside the country when the proceedings
were instituted.
[12]
In
the circumstances, applying, as I must, the principles expressed in
Plascon Evans Paints (Pty) Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA
51
;
1984 (3) SA 623
(A) at 634-635, I am impelled to accept that the
first respondent did not reside here when proceedings were instituted
and that
this court therefore lacks jurisdiction to determine the
application against him in his personal capacity.
[13]
The settlement agreement and the deed of
suretyship provided by the second to fourth respondents both contain
clauses in terms of
which the respondents have consented to the
jurisdiction of what is now the South Gauteng Division of the High
Court. It
seems to me that the applicant, which is a company
registered in the Isle of Man, has instituted proceedings against the
first
respondent in this Division probably because of the security
for the debt founded in the mortgaged property situate in the Western
Cape. If the application against the first respondent were to
be determined in the applicant’s favour in the South
Gauteng
Division there would not be a jurisdictional difficulty with that
Division’s ability to make an order of direct exigibility
against the mortgaged property situate within the area of this
Division’s territorial jurisdiction; see
Ivoral
Properties (Pty) Ltd v Sheriff, Cape Town
2005 (6) SA 96
(C), at para 39-53. These proceedings might have
been amenable in the circumstances to transfer to the South Gauteng
Division
in terms of
s 27
of the
Superior Courts Act 10 of
2013
. I raised that possibility with counsel during argument,
but the applicant chose not to seek to make the application that
would be necessary for such a transfer to be ordered.
[1]
[14]
It
follows that the application against the first respondent will have
to be dismissed for want of jurisdiction.
[15]
The second to fourth respondents in their
capacity as trustees of the Louis Group International Foundation
undertook joint and several
liability with the first respondent by
executing a deed of suretyship in favour of the applicant in which
they bound the trust
as surety for and co-principal debtor with the
first respondent in respect of the latter’s obligations under
the settlement
agreement. In the result, provided that the
existence of the principal obligation is established and is legally
valid, the
applicant is able to enforce the claim directly against
the second to fourth respondents independently of the first
respondent.
[2]
[16]
It
is not disputed on the papers that the trust has a substantial asset
within the territorial jurisdiction of the court in the
form of the
mortgaged property. The respondents’ counsel did not
dispute that this court has jurisdiction in respect
of the trust.
I think he was correct in not doing so. It seems established
that a court will exercise jurisdiction
over a trust where the trust
property is located within its area of jurisdiction or where the
trust is administered within that
area; see Cameron et al,
Honoré’s
South African Law of Trusts
5 ed at
646-659. The location of the trust property, not the places of
residence of the trustees, is the determining criterion.
[17]
It
is necessary then to consider the other grounds upon which the
respondents have disputed liability.
[18]
As
mentioned, the suspensive conditions were not all fulfilled within
the periods stipulated in the settlement agreement.
The first
respondent, with whom the other respondents appear to associate
themselves in opposing the application, has questioned
whether one of
the conditions, namely the obtaining of approval from the South
African Reserve Bank, has been satisfied at all.
The condition
was recorded in clause 4.1.2 of the settlement agreement. In
terms of clause 4.5, the parties bound themselves
to co-operate and
work together in submitting the necessary application to the Reserve
Bank. Questioning whether the condition
had been fulfilled was
a curious position to have for the respondents to have adopted.
In the first addendum to the agreement
subscribed to by the first
respondent in his personal capacity and on behalf of the trust on 11
March 2014 it was recorded that
the approval of the Reserve Bank was
still being sought. In the second addendum, similarly
subscribed to on 28 July 2014,
it was recorded that the parties had
agreed to record ‘that the approval of SARB, as required for
the registration of a first
mortgage bond over the Property in terms
of clause 4.1.2 of the Main Agreement and clause 4.5 of the Main
Agreement, has been obtained’.
[19]
If
regard is had to the provisions of the settlement agreement it seems
plain that the reason why Reserve Bank approval was required
was to
ensure that the security to be furnished would be efficacious in the
event of a default in payments under the contract by
the first
respondent. The terms of the recordal in the second addendum
confirm as much. The correspondence between
Nedbank Limited
(apparently representing the first respondent and the trust) and the
Reserve Bank attached to the applicant’s
replying papers makes
it clear that the Reserve Bank ‘approved the granting of a
suretyship bond up to the value of the overseas
debt’. It
appears therefrom that the approval was granted in principle orally
at a meeting held on 26 March 2014 and
confirmed in writing to
Nedbank by the Financial Surveillance Department of the Reserve Bank
on 18 May 2014.
[20]
The
next question to consider is whether the belated fulfilment of the
suspensive conditions resulted in the agreement lapsing,
as contended
by the respondents. It is trite that if the suspensive
conditions to which an agreement is subject are not fulfilled
within
the stipulated time, or timeously waived, the agreement lapses.
The applicant has contended, however, that the parties
tacitly
‘revived’ the agreement. That that may competently
occur is well established; see e.g.
Neethling
v Klopper en Andere
1967 (4) SA 459
(A)
at 466B and following. In my judgment the applicant’s
contention must for all practical purposes be upheld.
It does
not matter whether the ‘revival’ was tacitly or expressly
effected. In my view there is much to be said
for an argument
that the settlement agreement was expressly reinstated and varied in
terms of the second addendum agreement.
Whatever the position,
for the reasons that follow, I consider it to have been effectively
reinstated, subject to certain variations.
[21]
It is common cause that the signature of
the deed of surety, which was the first of the stipulated suspensive
conditions, occurred
timeously. The second addendum executed by
the parties, which has been described in relevant detail above,
clearly denotes
that the obtaining of Reserve Bank approval, albeit
outside the period stipulated in the original agreement, was regarded
by them
as effective for the purpose of the transaction. The
second addendum moreover provided (in clauses 5-9
[3]
)
for both the recordal of part performance of the original agreement
by the first respondent and for a variation of the main agreement
in
respect of (a) the payment provisions and (b) the withdrawal of
proceedings in England and the lifting of the associated
freezing
order in force there once the mortgage bond had been registered.
The second addendum did not state a time within
which the
registration of the mortgage bond had to occur, but it was clearly
intended to be within a reasonable time and probably
before 1
November 2014, by when the first respondent was in terms of the
varied payment provisions required to pay an amount of
£160 000.
The mortgage bond was in fact registered on 4 September 2014.
[22]
It
is clear that to the extent that the original agreement had lapsed
due to non-fulfilment of two of the suspensive conditions,
the second
addendum operated to confirm its reinstatement and variation by
agreement between the parties. The parties’
express
agreement in the second addendum that the ‘Main Agreement’
would remain binding upon them amounted upon a proper
construction of
that document to a tacit waiver in the reinstated agreement of the
time stipulations for the fulfilment of the
suspensive conditions
expressly stipulated in the original agreement. Indeed, it
would be impossible to give business efficacy
to the agreement
recorded in the second addendum if the time stipulations in clause
4.6 of the reinstated original agreement were
not to be treated as
pro non scripto
.
[23]
I
turn now to consider whether the agreement is a credit agreement that
is subject to the
National Credit Act. The
agreement was
concluded in England and the principal obligations to which it gave
rise fell to be performed in Britain. The
first respondent was
required to make payment to the applicant in sterling into a bank
account conducted in the Isle of Man.
What required to be done
in South Africa was that a mortgage bond had to be registered in
favour of the applicant over the trust’s
immovable property.
The purpose was to afford security for the performance of the
suretyship obligations undertaken by the
trust in terms of the deed
of surety executed in England. As described above, it is
evident that it was to this aspect of
the contractual arrangement
that the required approval by the South African Reserve Bank was
directed.
[24]
The
settlement agreement was thus a composite agreement. The
respondent’s counsel contended that its provisions provided
for
a credit transaction within the meaning of
s 8(4)(f)
of the Act
because it provided for a scheme of deferred payment of an amount
owed. I am not satisfied that this is correct
because it does
not provide for a charge, fee or interest in respect of the agreement
or the amount that had been deferred.
It did provide that in
the event of a default within the meaning of clause 5.3 of the
settlement agreement, the total debt in terms
of the loan that was
the subject of the pending litigation in England would become
immediately payable inclusive of the interest
payable thereunder,
which would fall to be calculated as if the settlement agreement had
not been concluded. In my view it
is the loan agreement that
would qualify as a credit transaction as defined in
s 8(4)(f)
of
the Act, and not the settlement agreement. Be that as it may,
the applicant’s counsel was willing to accept that
the
settlement agreement qualified as a credit transaction and, without
so finding, I shall proceed for present purposes on that
assumption.
It was a composite agreement in that it also made provision, as
integral part of its terms, for the conclusion
of by the trust an
associated credit guarantee agreement in the form of a deed of surety
and the provision of a surety bond.
[25]
It
is well established that a credit guarantee agreement qualifies as a
credit agreement for the purposes of the
National Credit Act in
terms
of
s 8(5)
only if it relates to an obligation undertaken by a
‘consumer’ in terms of a credit facility or a credit
transaction
to which the Act applies. See
s 8(5)
of the
Act and cf.
Nedbank Ltd v Wizard
Holdings (Pty) Ltd and others
2010 (5)
SA 523
(GSJ), at para. 9-10;
Structured
Mezzanine Investments (Pty) Ltd v Davids and others
2010 (6) SA 622
(WCC), at para. 16, and
Silver
Falcon Trading 333 (Pty) Ltd and Others v Nedbank Ltd
2012 (3) SA 371
(KZP), at para 16. The second to fourth
respondents are being sued on the basis of the obligation undertaken
in terms of
the credit guarantee. The
National Credit Act can
be of application only if the credit transaction to which it relates
- for current purposes, the credit transaction component of
the
settlement agreement - is subject to the Act
[26]
Section
4(1)
of the Act provides that the Act ‘
applies
to every credit agreement
[defined in
s
1
to mean ‘an agreement that meets all the criteria set out in
section 8
’]
between parties
dealing at arms length and made within, or having an effect within,
the Republic, except….
’.
It is not disputed that the credit transaction feature of the
settlement agreement was entered into between parties
dealing at arms
length. It was
not
made within the Republic. The only question then is does it, or
did it, have an effect within the Republic? The respondents’
counsel relied on the provision of security by means of mortgaging
immovable property in South Africa and the application for Reserve
Bank approval as the matters that resulted in the contract having an
effect within the Republic. But, as I have sought to
explain,
those effects concerned only the credit guarantee related aspect of
the settlement agreement, not the credit transaction
aspect to which
the guarantee pertains. The deferred payment structure of the
settlement agreement has no effect within South
Africa at all.
[27]
The
expression ‘
having an effect in
’,
considered in isolation and without due regard to the context, is
vague and potentially of extremely wide import.
Basic
principles of statutory interpretation require, however, that its
meaning within
s 4(1)
of the Act be determined with regard to
its context. Context in the relevant sense includes its place
in the language of
the provision in which it appears and, more
widely, the apparent scope and objects of the statutory instrument
concerned. The
latter consideration is expressly reiterated in
s 2(1)
of the Act, which prescribes that ‘
This
Act must be interpreted in a manner that gives effect to purposes set
out in s 3.
’ Section 3 of
the Act sets out the purposes of the Act. It is essentially an
expanded rehearsal of the long title
of the Act.
[28]
The
introductory wording of s 4(1), which provides the immediate
context of the expression, states that the Act applies, subject
to
the stated exceptions, to every credit agreement made within the
Republic. The addition of the qualification ‘or
having an
effect within’ the Republic appears to me to be directed at
bringing within the ambit of the Act credit agreements
that are
concluded extra-territorially, but which fall to be carried out
materially as if they had been concluded within the Republic.
Various examples come readily to mind: an instalment sale agreement
concluded in Namibia in terms of which the goods concerned
are to be
supplied to, used by and paid for the consumer in South Africa; a
deed of surety executed in the United Kingdom in terms
of which a
local resident undertakes an accessory obligation in favour of the
credit provider in respect of another type of credit
agreement to
which the Act is applicable. Notwithstanding that the
agreements in the given examples were concluded outside
the country,
their material effect within the country in each example is
indistinguishable for practical purposes from that of
like agreements
between the same or equivalent parties concluded within the country.
The objects of the Act would be liable
to being easily subverted if
the exclusion from the Act of credit agreements concluded outside the
country were not to be qualified.
It is to that consideration
that the ‘
having an effect in
’
seems to me to be directed. The relevant ‘effect’
within the meaning of the expression in s 4(1)
must, in my view,
be one that would be relevant with regard to the purposes of the Act.
[29]
Section
3 of the Act provides:
Purpose
of Act
The
purposes of this Act are to promote and advance the social and
economic welfare of South Africans, promote a fair, transparent,
competitive, sustainable, responsible, efficient, effective and
accessible credit market and industry, and to protect consumers,
by-
(a)
promoting the development of a credit market that is accessible to
all South Africans, and in particular to those who have historically
been unable to access credit under sustainable market conditions;
(b)
ensuring consistent treatment of different credit products and
different credit providers;
(c)
promoting responsibility in the credit market by-
(i)
encouraging responsible borrowing, avoidance of over-indebtedness and
fulfilment of financial obligations by consumers; and
(ii)
discouraging reckless credit granting by credit providers and
contractual default by consumers;
(d)
promoting equity in the credit market by balancing the respective
rights and responsibilities of credit providers and consumers;
(e)
addressing and correcting imbalances in negotiating power between
consumers and credit providers by-
(i)
providing consumers with education about credit and consumer rights;
(ii)
providing consumers with adequate disclosure of standardised
information in order to make informed choices; and
(iii)
providing consumers with protection from deception, and from unfair
or fraudulent conduct by credit providers and credit bureaux;
(f)
improving consumer credit information and reporting and regulation of
credit bureaux;
(g)
addressing and preventing over-indebtedness of consumers, and
providing mechanisms for resolving over-indebtedness based on
the
principle of satisfaction by the consumer of all responsible
financial obligations;
(h)
providing for a consistent and accessible system of consensual
resolution of disputes arising from credit agreements; and
(i)
providing for a consistent and harmonised system of debt
restructuring, enforcement and judgment, which places priority on the
eventual satisfaction of all responsible consumer obligations under
credit agreements.
[30]
The
credit transaction in the current matter was entered into outside the
country between a foreign company and a person resident
in the United
Kingdom. It took place completely outside the South African
credit market and nothing about it has been shown
to have any bearing
on accessibility to credit by South Africans or the nature of credit
products available within South Africa.
Why should a party
providing credit in that context be regulated by South African
legislation and required to register as a credit
provider here in
order to advance credit? When considered in the light of
s 3
of the
National Credit Act, I
cannot identify any incident of the
credit transaction component of the settlement agreement that had a
relevant effect within
South Africa. The incidence of security
being furnished for payment of the debt by a South African property
owning trust
cannot be a basis for regarding the Act as applicable to
the credit transaction on the ground of the credit agreement having
an
effect here because, as mentioned,
s 8(5)
of the Act itself,
excludes the application of the statute to credit guarantees in
respect of credit transactions to which the
Act does not apply.
The other argument by the respondents’ counsel that the
agreement had an effect within the Republic
because of the consent by
the parties to the non-exclusive jurisdiction of the South Gauteng
Division of the High Court is also
without merit. Accepting
that the consent to jurisdiction notionally could give rise to an
effect within the Republic, it
would not be of a nature that would in
any way be relevant for the purposes of the Act.
[31]
Insofar
as the trust is concerned, it in any event qualifies as a ‘juristic
person’ as defined in
s 1
of the Act. This is so because
it has three trustees. It is evident from the apparent value of
the property it has
furnished as security in the transaction, which
it purchased for R18 million in 2007 and in the same year
mortgaged to a third
party for R16 million, that it is possessed
of assets exceeding the threshold value determined by the Minister of
Trade and
Industry in terms of
s 7(1)(a)
; viz. R1 million.
In the circumstances, by reason of
s 4(1)(a)
of the Act, which
provides that the Act does not apply to credit agreements in which
the consumer is a juristic person whose asset
value exceeds the
threshold value determined by the Minster in terms of
s 7(1)
,
the credit guarantee contemplated by the settlement agreement does
not in any event fall within the reach of the statute.
[32]
It
follows, in the absence of any substantive defence to the claim, that
the applicant is entitled to judgment in its favour in
terms of
paragraphs 1, 2 and 3 of the notice of motion.
[33]
The
following orders are made:
1.
The
application against the first respondent is dismissed with costs on
the grounds of this court’s lack of jurisdiction to
adjudicate
the claim against him.
2.
The
second, third and fourth respondents, in their capacities as the
trustees of the Louis Group International Foundation (IT 1548/2006),
are directed to pay the following amounts to the applicant:
2.1
£1 906 359 (one million
nine hundred and six thousand three hundred and fifty nine pounds
sterling) converted to
South African Rand on the date of payment;
2.2
Interest on the amount of £1 906 359
(one million nine hundred and six thousand three hundred and fifty
nine pounds
sterling) at the rate of 9,5% per annum from 1 December
2014 to date of payment, converted to South African Rand on the date
of payment
3.
The
Remainder Portion 1 of the Farm Brakke Fontein No. 32 in the City of
Cape Town, Cape Division, Western Cape Province registered
in the
name of the trustees for the time being of Louis Group International
Foundation (IT 1548/2006) in terms of deed of transfer
number
T40947/2007 is hereby declared specially executable in respect of the
judgment debt in terms of paragraph 2 of this order.
4.
The
second, third and fourth respondents, in their capacities as the
trustees of the Louis Group International Foundation (IT 1548/2006),
shall be liable to pay the applicant’s costs in the application
on the scale as between attorney and client (as provided
in terms of
clause 5.6 of the settlement agreement read with clause 7.7. of the
deed of suretyship).
A.G.
BINNS-WARD
Judge of the
High Court
[1]
I might mention in this connection that the
judgment in
Hay Management Consultants
(Pty) Ltd v P3 Management Consultants (Pty) Ltd
2005 (2) SA 522
(SCA) upon which the applicant relied in its heads
of argument does not appear to me to be pertinent. There is no
scope
to infer a consent by the first respondent to the jurisdiction
of this court. He did consent to the jurisdiction of a South
African court, but it was to jurisdiction of the South Gauteng
Court.
[2]
See e.g. Forsyth & Pretorius,
Caney’s
Law of Suretyship
6
th
ed at 56-7 and LAWSA 2
nd
ed (replacement volume 2010) vol 5
part 1
at para 423(a).
Clause 5.4 of the settlement agreement also expressly provided as
much.
[3]
Clauses 5-9 of the second addendum provided:
‘
5. Sunrock acknowledges receipt of
payment from AL for the sum of
£
14 500
as contemplated in clause 8.3 of the Main Agreement.
6. The parties agree that, in terms of clause
5.2 of the Main Agreement, AL shall pay the sum of
£
160,000
on or before 1 November, 2014 which will then constitute full
payment of the twenty equal instalments of
£
10,000
since monthly payments from 1 Dec 2013 to 31 March 2014 were paid by
AL. No default notices are recorded in terms of Clause
5.3 of the
Main Agreement.
7. Once the mortgage bond as contemplated in the
Main Agreement has been registered, and thereafter only upon AL’s
written
request, Sunrock will:-
7. withdraw the legal proceedings without conditions
as contemplated in clause 5.7.1 of the Main Agreement;
7.2 release the freezing order without conditions as
contemplated in clause 5.7.2 of the Main Agreement;
7.3 write to such parties as AL may reasonably
require confirming that the freezing order has been removed.
8. Save for the amendments contained herein the Main
Agreement shall remain binding on the parties.
9. This addendum constitutes the entire agreement
between the parties regarding the amendment to the Main Agreement.’