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[2011] ZAGPJHC 44
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Altron One Finance Exceptances (Pty) Ltd v Heathcote (A3072/10) [2011] ZAGPJHC 44 (28 February 2011)
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: A3072/10
DATE: 2011-02-28
REPORTABLE
(In the electronic reports only)
In the matter between
ALTRON
ONE FINANCE EXCEPTANCES (PTY) LTD
...............
(Formerly
known as Technologies Acceptances (Pty) Limited)
Appellant
And
MICHAEL
CLIVE HEATHCOTE
Respondent
J U D G M E N T
WILLIS,
J:
[1]
The plaintiff instituted action in the Randburg Magistratefs
Court. The plaintiff claimed the sum of R32 177.49
together
with interest and cost for the attorney and clientfs scale.
The basis of the claim was that the defendant
had stood surety for an
agreement concluded between a principal debtor, being a closed
corporation, represented by the defendant
who was the principal
member thereof.
[2]
The principal debtor had entered into an agreement in terms of which
the principal debtor rented from the appellant certain
equipment over
a period of 60 months. The rental payable in terms of that
agreement was linked to the prime rate of interest.
The
principal debtor in breach of the agreement failed to make payments
to in terms of the agreement. The appellant cancelled
the
agreement and sought recourse against the surety.
[3]
In the particulars of claim it was alleged that the agreement in
question related to the lease to the principal debtor of what
would
colloquially be known as a photocopying machine. The principal
debtor was Xanthus Printing and Stationary CC. The monthly
rental
would be the sum of around R1 523.18.
[4]
In the particulars of claim, the plaintiff alleges that:-
“
The
provisions of a
National Credit Act 30 of 2005
are not applicable to
the agreement in that
8.1 Ownership of the equipment does
not pass to the principal debtor, neither does ownership pass upon
satisfaction of a specific
condition or upon expiry of the agreement,
and the agreement is accordingly not a credit agreement as envisaged
in
Section 8
(1) and more particularly
Section 8
(4) of the said Act;
alternatively
8.2 The principal debtor, a juristic
person, had an actual, alternatively stated asset value or annual
turnover, which at the time
of conclusion of the agreement, was equal
to or exceeded the threshold value determined by the Minister in
terms of
Section 17
(1) of the said Act.”
[5]
It is quite clear from the provisions of
Section 4
of the
National
Credit Act
(gthe NCAh) that the provisions thereof
do not apply in the circumstances alleged by the plaintiff in
paragraph 8.2
of the particulars of claim.
[6]
The appellant, who was the plaintiff in the court a quo, requested a
default judgment. The learned Magistrate declined
to grant a
default judgment and in doing so, she have relied upon the definition
in the Act (the NCA) of an incidental the credit
agreement for which
one must find the definition in
Section 1
of the NCA. This
definition has received attention in this division by Moshidi J and
Kolbe AJ in the case of Corporate Finance
Solutions (Pty) Limited v
Frank Collins Logistics (Pty) Limited (Case number 3029/2010).
[7]
In my respectful opinion, it is not necessary to determine whether
the agreement in this particular case is an incidental credit
agreement or not. In my opinion, it is sufficient to have
regard to the undisputed allegation in the particulars of claim,
relating to the question of the actual stated asset value or annual
turnover at the time of conclusion of the agreement.
Where that
allegation is undisputed, it seems that there is a valid claim
against the defendant and that the proper order for a
court is in
fact to grant default judgment where it requested.
[8]
It is now well settled in this division that if the principal debt
does not fall within the scope of the NCA, then any suretyship
in
respect thereof also falls outside the scope of the NCA. I refer, in
particular, to the case of First Rand Bank Limited v Carl
Beck
Estates (Pty) Limited and Another
2009 (3) SA 384
(T) which, I
understand, has been followed frequently in this division.
Accordingly the appellant must succeed in the appeal
against the
refusal of default judgment by the learned Magistrate.
[9]
The following order is made:
1.
The appeal is upheld.
The order of
the learned Magistrate given on 30 May 2010 is set aside and the
following is substituted in lieu thereof:
gThe defendant is
to pay the plaintiff the sum of R32 177.49 together with interest
thereon at the rate of 15,5 percent per
annum from 23 July 2008 (the
date of service of summons) to date of final payment and costs of
suit on a scale as between attorney
and client (as provided for in
the applicable agreement)h.
Acting Judge Teffo concurred.
---oOo---
Counsel
for the Appellant: Adv. A.
Grundlingh
Attorneys for the Appellant: Munnik
Basson Inc.
No appearance for the
Respondent/Defendant.
Date of hearing: 28 February, 2011
Date
of judgment: 28 February, 2011