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[2014] ZAGPJHC 414
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Lombard Insurance Company Limited v L & D Enterprises (Pty) Ltd and Others (32905/13) [2014] ZAGPJHC 414 (8 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO: 32905/13
DATE:
08 DECEMBER 2014
In
the matter between:
LOMBARD
INSURANCE COMPANY
LIMITED
...............................................................
Applicant
And
L
& D ENTERPRISES (PTY)
LTD
............................................................................
First
Respondent
CLIDET
NO 1041 (PTY)
LTD
................................................................................
Second
Respondent
PIETER
GABRIEL
KNOX
.......................................................................................
Third
Respondent
PAULO GEORGE
FERNANDES DA
SILVA
........................................................
Fourth
Respondent
JUDGMENT
MAKOPO
AJ:
[1]
The Applicant seeks an order in the following terms that:
1.1
the first and second Respondent, jointly and severally the one paying
the other to be absolved are to pay to the Applicant an
amount of
R1135869.47.
1.2
the Third Respondent be ordered to pay the Applicant an amount of
R56793.47, jointly and severally with any payment in the paragraph
above.
1.3
the Respondents be ordered to pay the Applicant interest on the
amounts above from 27 March 2013 to date of final payment at
the
prime overdraft rate of Nedbank Limited, plus 2% (two per cent).
1.4
the Respondents be ordered to pay the costs of suit on the scale
between
attorney and client.
[2]
The Applicant Lombard Insurance Company Ltd, hereinafter referred to
as Lombard, is an insurer, it agreed to issue construction
guarantees
from time to time on behalf of the First Respondent, a construction
company, in exchange for indemnity for or on behalf
of the First
Respondent and the provision of suitable security.
2.1
The First Respondent entered into the contract of indemnity that
appears at “LOM3”.
2.1.1
“LOM3” is admitted
[1]
.
[3]
As a security, the Second Respondent entered into the contract of
suretyship with Lombard that is “LOM4”.
3.1
“LOM4” is admitted
[2]
.
[4]
As further security, the Third Respondent entered into the contract
of suretyship with Lombard “LOM5”.
4.1
“LOM5” is admitted
[3]
.
[5]
On or about 27 November 2012 Lombard (Applicant) at the instance and
request of the First Respondent, issued a construction
guarantee,
hereinafter referred to as “LOM6” in the founding papers.
5.1
It is admitted in para 17 of the First; Second; and Third Respondents
answering papers.
[6] On the 27 March
2013, Lombard (the Applicant) made payment of an amount of
R1 135 869.47.
6.1 The First;
Second; and Third Respondents admits that payment was made.
6.1.1
It is denied however,
[4]
that
such payment was made in accordance with the guarantee.
[7]
The First; Second; and Third Respondent’s defence is that the
guarantee makes no reference to the Employer.
[8]
The First; Second; and Third Respondents on its own admission admits
payment and the contracts and suretyship agreements entered
between
the parties.
8.1
There is no allegation or denial of indebtedness either than the
denial of the reference to the “Employer”.
[9]
The First; Second; and Third Respondents defence does not have merit
and there is no denial of indebtedness to the Applicant.
[10]
I accordingly grant the amendment as set out in the amended notice of
motion dated 11 August 2014.
[11]
I accordingly make the following orders:
11.1
A draft order reflecting the amended prayers marked “X”
is made an order of the court.
N MAKOPO
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Applicant : IB Currie
Instructed by :
Frese Moll & Partners,
For
the First; Second and Third Respondents : D L Williams
Instructed by:
Malherbe Rigg & Ranwell Inc
Date
of hearing : 13 August 2014
Date
of Judgment : 08 December 2014
[1]
See par 12 of the First; Second; and Third Respondents answering
affidavit.
[2]
See para 14 of the First; Second; and Third Respondents answering
affidavit.
[3]
See para 16 of the First; Second; and Third Respondents answering
affidavit
[4]
See
para 20.