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[2010] ZAGPJHC 163
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Gearhouse South Africa (Pty) Ltd v Nqulo and Another (2006/8373) [2010] ZAGPJHC 163 (18 June 2010)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 2006/8373
DATE:18/06/2010
In
the matter between:
GEARHOUSE
SOUTH AFRICA (PTY)
LTD
......................................................
Plaintiff
and
NOMONDE
NQULO
..............................................................................
First
Defendant
GODFREY
MAUTLOA
.....................................................................
Second
Defendant
J U D G M E N T
MEYER,
J
[1] The
second defendant, Mr. Godfrey Mautloa, and his wife are partners in a
restaurant business in Soweto, which is called Masakeng
Restaurant.
The second defendant is also the sole member of a close corporation
called Soweto Beer Festival CC. The principal
business of this close
corporation is to hold a beer festival annually during the last
weekend of October at Masakeng Restaurant.
The beer festival is
known as the Soweto Beer Festival. This annual event has, with the
exception of the year 2005, been taking
place at Masakeng Restaurant
since 1990.
[2] BlackGinger
36 (Pty) Ltd (‘BlackGinger 36’) is a company that
conducts business in events management, promotions,
sponsorships, and
marketing. The first defendant is the managing director of
BlackGinger 36. During the course of 2005, BlackGinger
36 approached
Soweto Beer Festival CC with the proposal that it would organise the
Soweto Beer Festival into an event of much greater
proportions with
various forms of entertainment. The event would no longer take place
at the Masakeng Restaurant, but at a stadium
in Soweto and be funded
by sponsorships which BlackGinger 36 would obtain. BlackGinger 36
would obtain the necessary services
and equipment from various
suppliers and artists. On 3 June 2005, a written joint venture
agreement giving effect to this proposal
was concluded between
BlackGinger 36, represented by the first defendant, and Soweto Beer
Festival CC, represented by the second
defendant. Clause 7.2.4 of
this agreement provides that ‘[a]s against third parties, any
party incurring any liability in
connection with the affairs of the
joint venture shall be solely responsible for the discharge thereof.’
It is common cause
that the revenue received through ticket sales
and the like for the 2005 Soweto Beer Festival was insufficient to
enable BlackGinger
36 to meet the various financial obligations that
it had incurred as a result of contracts that it had concluded with
providers
of services and equipment for the festival. One such
unpaid creditor is the plaintiff.
[3] On
15 October 2005, a written agreement was concluded between the
plaintiff, which is a technical service provider for big events,
and
BlackGinger 36 (‘the agreement’). In terms of the
agreement the plaintiff undertook to render certain services
and to
supply certain equipment, such as a stage, lighting and sound
equipment, to BlackGinger 36 at the 2005 Soweto Beer Festival
for a
total consideration of R576 551.01 including VAT, which amount was to
be paid by BlackGinger 36 to the plaintiff before Friday,
21 October
2005. It is undisputed that the plaintiff duly complied with its
obligations in terms of the agreement and that BlackGinger
36 has
failed to pay to the plaintiff the contract sum of R576 551.01 when
payment thereof fell due or at any time thereafter.
[4] The
plaintiff sought to hold the first defendant personally liable for
the indebtedness of BlackGinger 36 on a deed of suretyship,
which is
contained in the agreement. Having been satisfied that a proper case
had been made out against the first defendant based
on the suretyship
that she had signed in favour of the plaintiff, I granted default
judgment against her at the conclusion of this
trial on 25 November
2009, for payment of the sum of R576 551.01, interest, and attorney
and own client costs.
[5] The
plaintiff alleges that the second defendant in writing also bound
himself as surety and co-principal debtor with BlakGinger
36 for and
in respect of the indebtedness of BlackGinger 36 to the plaintiff.
This is denied by the second defendant. Ms. Yvette
Mason (a
co-partner of Mason Company), Mr. Ofer Lapid (the managing director
of the plaintiff), and Mr. John McDermott (the Johannesburg
branch
manager for the plaintiff), were called as witnesses by the
plaintiff. The second defendant testified in his own defence.
[6] BlackGinger
36 engaged the services of Mason Company to assist in organising the
2005 Soweto Beer Festival. Ms. Yvette Mason,
in turn, facilitated
the conclusion of the agreement between the plaintiff and BlackGinger
36. Ms. Mason dealt with Mr. John McDermott,
who represented the
plaintiff in their dealings, and with the first defendant, who
represented Blackginger. Mr. McDermott prepared
the agreement in
accordance with the requirements of BlackGinger 36 that had been
conveyed to him by Ms. Mason and by the first
defendant. Mr.
McDermott sent the agreement to Ms. Yvette Mason for her to present
it to the first defendant. Ms. Yvette Mason
testified that she, on
15 October 2005, handed the agreement to the first defendant. She
explained it to the first defendant and
in particular she made her
aware of the suretyship and she showed the first defendant where she
should sign, which the first defendant
duly did. Ms. Mason testified
that the first defendant thereupon approached the second defendant,
who also signed the agreement.
[7] The
second defendant’s evidence, which was not gainsaid, is that by
appending his signature on the document he, at the
request of the
first defendant, signified the approval of Soweto Beer Festival CC to
the equipment that was ordered for the requirements
of and
entertainment at the festival. He was told that the document was an
order for the equipment and he was asked to sign it.
He was
satisfied with whatever equipment was ordered if Ms. Mason and the
first defendant were satisfied. He did not read the
document. He
signed where the first defendant showed him to sign. He was not
asked to and he did not sign the document as a surety
and
co-principal debtor. Ms. Mason, Mr. Lapid, or Mr. McDermott did not
suggest when they testified that the plaintiff required
the second
defendant to sign the agreement or to bind himself as surety and
co-principal debtor with BlackGinger 36 in favour of
the plaintiff.
[8] The
second defendant’s signature
inter
alia
appears
next to that of the first defendant in a section of the agreement
with the heading ‘Suretyship & Warranty of
Authority’.
This section of the agreement has two clauses. The first one deals
with suretyship. It reads:
‘
The signatory on
behalf of the client, by his/her signature hereto, binds
himself/herself in favour of Gearhouse, its successors
in title and
assigns as Surety for and co-principal debtor in solidum with the
client for the due and punctual performance by the
client of all its
obligations to Gearhouse in terms of the Agreement.’
[9] The
reference to ‘client’ is a reference to BlackGinger 36
and the reference to ‘Gearhouse’ is a reference
to the
plaintiff. Below the text in this section of the agreement is
provision for a name and signature underneath the words:
‘For
BlackGinger 36’. This is where the second defendant wrote his
name and surname next to those of the first defendant
and where he
signed next to the signature of the first defendant.
[10] The
wording of the suretyship is clear and unambiguous. Only the
‘signatory on behalf of’ BlackGinger 36, by his
or her
signature binds him or herself in favour of the plaintiff as surety
and co-principal debtor with BlackGinger 36. It is
common cause that
the first defendant at all material times to the agreement
represented BlackGinger 36. The signatory for and
on behalf of
BlackGinger was the first defendant. The second defendant is
accordingly not liable to the plaintiff in terms of
the suretyship
contained in the agreement.
[11] In
the result the plaintiff’s action as against the second
defendant is dismissed with costs.
P.A
MEYER
JUDGE
OF THE HIGH COURT
18
June 2010