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2014
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[2014] ZAGPJHC 359
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Vela v Rainbow Shuttle Services CC and Another (26955/14) [2014] ZAGPJHC 359 (3 December 2014)
REPUBLIC OF SOUTH
AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 26955/14
DATE:
03 DECEMBER 2014
In the matter
between:
ROBIN TENDAI
VELA
................................................................
PLAINTIFF
And
RAINBOW SHUTTLE
SERVICES CC
..............................
1ST
DEFENDANT
ELTON
CHITONDO
........................................................
2ND
DEFENDANT
J U
D G M E N T
TWALA AJ:
[1] The plaintiff
sues the first and second defendants for payment of the sum of R540
000 together with interest thereon at 12%
per month a tempore morae,
in terms of the acknowledgment of debt signed between the parties on
the 5 March 2014. The total sum
of the acknowledgement of debt is
R680 000 of which R140 000 has been paid.
[2] The defendants
filed their opposing papers, disputing that the amount alleged to be
due and payable is a sum of R540 000. Defendants
contend that they
have already paid a sum of R320 000 towards liquidating the debt.
[3] It is common
cause that the defendants borrowed a sum of R500 000 from the
plaintiff at an agreed interest rate of R60 000 per
month. The total
sum owing was payable over 3 months as follows:
3.1 7 April 2014 –
R60 000
3.2 7 May 2014 –
R60 000
3.3 7 June 2014 –
R560 000
The defendants
signed an acknowledgment of debt and undertook to pay the plaintiff
the total sum of R680 000 within 3 months, as
stated above.
[4] The defendants
experienced problems and failed to adhere to the agreed payment
schedule. The defendants contend that the plaintiff
has charged them
an oppressive interest at the rate of 12% per month. The total
amount they have paid to date is the sum of R320
000 and therefore
the balance outstanding is not the sum of R540 000 as claimed.
[5] In its replying
affidavit, the plaintiff admitted that he has in fact been paid a sum
of R320 000 by the defendants. However,
he contends that the
calculation of the defendants’ indebtedness in the provisional
sentence summons is incorrect. The correct
outstanding amount is the
sum of R673 875-41. The calculation of this amount appears on a
schedule attached to the plaintiff’s
replying affidavit. The
difference between the sum R540 000 initially claimed and the sum of
R673 875-41 is made up of interest.
[6] The defendants
brought an application for leave to supplement its papers with a
supplementary affidavit. The reason therefor
is that plaintiff has
raised a new matter in its replying affidavit. The Plaintiff now
claims a sum of R673 871-41 plus interest
of R60 000-00 per month
until date of payment in full. Defendants further contend that it is
not correct that they approached
the plaintiff for the loan because
they had failed to secure funding from financial institutions since
they were technically insolvent
and were looking for rescue funds.
[7] The plaintiff
opposed this application. Plaintiff argued that provisional sentence
proceedings allowed only two sets of affidavits.
It contended that
there is no new matter raised in its replying affidavit. It is
merely a calculation of interest as was agreed
upon in terms of the
acknowledgment of debt. Only when special and exceptional
circumstances exist should the court allow further
exchange of
affidavits.
[8] Leave to
supplement the defendants’ papers was granted by the court
since it was not shown that plaintiff will suffer
any prejudice
thereby. It is in the interest of justice and fairness for the court
to give parties an adequate opportunity of
putting their case before
the court. The defendants would not have anticipated that the
plaintiff would adopt a different approach
in its calculation of the
amount outstanding in its replying affidavit.
[9] At this stage it
is apposite to note that the defendants argued that the plaintiff’s
claim is based on a liquid document.
Plaintiff has attached a copy
of the liquid document to the provisional sentence summons. In terms
of the rules, plaintiff is
supposed to provide the original liquid
document at the trial of the matter. In this matter, plaintiff has
not provided the
original liquid document. The practice manual of
this court requires that, the original liquid document upon which
provincial
sentence is sought, be handed to court when the plaintiff
moves for provincial sentence.
[10] Plaintiff
concedes that it does not have the original document. Plaintiff’s
counsel submitted that the original liquid
document is in the
possession of the defendants. Plaintiff’s counsel argues
further that the court can only refuse provincial
sentence in this
matter, if the court finds that the acknowledgement of debt is a
promissory note as defined in Section 87 of the
Bills of Exchange Act
No: 34 of 1964. Plaintiff further concedes that the practice manual
of this court does require the original
liquid document, upon which
provincial sentence is sought, to be handed to court when provisional
sentence is sought.
[11] Section 68 of
the Bills of Exchange Act 34 of 1964 provides as follows:
“In any action
or proceeding a bill or note, other than a proceeding for provincial
sentence, the court may order that the
loss or non-production of the
instrument shall not be set up by way of defence, provided an
indemnity be given to satisfaction
of the court against the claims of
other persons upon the instrument in question”.
The Practice Manual
in Chapter 10.11 provides as follows:
1. Proof of
presentation of a negotiable instrument is unnecessary unless the
presentation is disputed or the court required proof
thereof.
2. The original
liquid document upon which provisional sentence is sought must be
handed to the court when plaintiff moves for provincial
sentence.
[12] Section 87 of
the Act 34 of 1964 provides as follows:
“A promissory
note is an unconditional promise in writing made by one person to
another, signed by the maker, and engaging
to pay on demand or at a
fixed or determinable future time, a sum certain in money, to a
specified person or his order or to bearer.”
[13] I am called
upon to first determine whether the acknowledgment of debt signed by
defendants does meet the requirement of Section
87 of Act 34 of 1964.
In the acknowledgment of debt, the defendants undertook to pay to
the plaintiff a sum of R680 000-00 no
later than the 7th June 2014.
In my view, the acknowledgement of debt signed by the defendants meet
all the requirements of Section
87 of the Act. It is therefore a
promissory note in terms of Act 34 of 1964.
[14] I am alive to
the plaintiff’s contention that this court has a discretion to
condone the non-production of the original
liquid document as
required by the practice manual. However, plaintiff needs to take
the court into its confidence to enable the
court to exercise its
discretion judicially and properly. Plaintiff has failed to place
evidence before this court as to why
it cannot hand up the original
liquid document. Plaintiff knew at the time it instituted these
proceedings that it did not have
the original liquid document but
failed to disclose this fact in its papers. Plaintiff has not
tendered any explanation why it
does not have the original liquid
document. Counsel for the plaintiff could only say that her
instructions are that the original
liquid document is in the
possession of the defendants. No explanation is tendered as to the
reasons why it is in possession of
the defendants and not the
plaintiff as the person who needed the security for the debt.
Therefore, this court has not been placed
in a position to exercise
its discretion properly and cannot therefore accede to the
plaintiff’s request.
[15] Both parties
referred me to the matter of SALOT VS NAIDOO
1981 (3) SA 959
(D). I
agree with the defendants that the present matter is distinguishable
from the Salot matter on the basis that the acknowledgement
of debt
in the Salot matter does provide for a fixed date of payment.
[16] The plain
interpretation of Section 68 of the Act is that it prohibits the
court for granting provisional sentence if the original
liquid
document upon which provisional sentence is sought cannot be produced
or is lost. In the circumstances, the plaintiff’s
claim on
provisional sentence falls to be dismissed for non-production of the
original liquid document upon which provisional sentence
is sought.
[17] Having regard
to the facts and circumstances of this matter, I make the following
order:
1. Provisional
sentence is dismissed.
2. Defendants are
granted leave to defend and the normal rules of court shall apply.
3. Costs are
reserved.
TWALA
ACTING JUDGE OF
THE HIGH COURT JOHANNESBURG
DATE OF
HEARING: 12 November 2014
DATE OF JUDGMENT:
03 December 2014
COUNSEL FOR
PLAINTIFF: C HUMPRIES
ATTORNEYS OF
PLAINTIFF: MICHAEL DENENGA ATTORNEYS
011 268 5637
COUNSEL FOR
DEFENDANTS: PG LOUW
ATTORNEYS FOR
DEFENDANTS: HUTCHEON ATTORNEYS
011 454 3221