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[2010] ZAGPJHC 97
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Nedbank Ltd v Ziltrex 77 (Pty) Ltd and Others (2009/50239) [2010] ZAGPJHC 97 (29 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE No. 2009/50239
DATE:29/10/2010
Reportable
in the electronic law reports only
In the matter between:
NEDBANK
LTD
..........................................................................
Plaintiff
and
ZILTREX 77 (PTY)
LTD
.............................................................
First
Defendant
& EIGHT OTHERS
…............................................
Second to
Ninth Defendants
____________________________________________________________
JUDGMENT
WILLIS J:
[1] The plaintiff claims
from the first, second, third, fourth, eighth and ninth defendants
and the Adventure Family Trust on the
basis that they are sureties
for the debts of Co-Props 56 (Pty) Ltd, the principal debtor. The
Adventure Family Trust is represented
by the fifth, sixth and seventh
defendants. Co-Props (Pty) Ltd is not a party to these proceedings.
In the particulars of claim
it is alleged that the debt of the
principal debtor is R46 261 585, 11, together with interest and costs
and that this debt arises
from a so-called facility agreement
(annexed to the particulars of claim as annexure “B”) in
terms of which the plaintiff
lent money to it, the principal debtor.
Interest is claimed from 3 September 2009. The rate of interest is
alleged to have been
agreed between the plaintiff and the principal
debtor. The plaintiff is a bank. I shall refer to it simply as “the
bank”.
The amount claimed from the different individual
defendants in question varies according to the limit of the amount
stipulated
in the individual written agreements of suretyship. As
against the individual defendants in question the bank claims joint
and
several liability with the principal debtor, the one paying, the
other to be absolved. It is only against the Adventure Family Trust
and fourth defendant that the plaintiff claims the full amount of the
principal debtor’s debt. Annexure “B was signed
by the
principal debtor in Sandton on 13 June 2007 and the bank in Cape Town
on 26 June 2007.
[2] It is common cause
that in clause 9 of annexure “B”, the facility agreement
was made “subject to” certain
“special conditions”.
These special conditions all relate to the plaintiff being placed in
possession of certain documents
before the money would be lent. These
documents may all be described as documents which the plaintiff
required as being part of
its “due diligence” exercise.
The documents are clearly documents which were intended to “prove”
certain
facts upon which the plaintiff relied in agreeing to grant
the loan. They have no bearing on the actual performance of any of
the
obligations giving rise to the claim. Furthermore, it is common
cause that clause 2 of annexure B provides that the facility is
conditional upon “the following security being furnished to the
bank”. In paragraph 12 of the particulars of claim
the
plaintiff alleges that the security as referred to in clause 2 was,
in fact, provided to the bank “by 13 June 2007 and
thus the
facility expired 24 months thereafter”. The security includes
the written suretyship agreements upon which the
plaintiff relies in
its claim against the defendants. There appears to be no dispute that
the money was in fact lent by the bank
to the principal debtor.
[3] The defendants have
excepted to the particulars of claim on the basis that, although the
plaintiff alleged that the security
as contemplated in clause 2 of
annexure “B” had been provided, the plaintiff failed to
allege that the “special
conditions” referred to in
clause 9 were, in fact, fulfilled. The defendants have also excepted
on the basis that the plaintiff
alleges that the facility expired 24
months after the commencement date, whereupon the debt became
repayable but have failed to
specify when this “commencement
date’” occurred. The exception is confined to the ground
that the plaintiff’s
claim lacks averments necessary to sustain
a cause of action. In other words the defendants do not claim that
the particulars furnished
by the plaintiff are vague and
embarrassing.
[4] In clause 1.1 of
annexure “B” the following is set out:
The bank will, subject to
the terms hereof make available to the Borrower an amount of R46 000
000 (Forty Six Million rand) herein
after referred to as the
“facility amount”, of which a cash amount of R35 000 000
(Thirty Five million Rand) will be
made available to the Borrower on
the terms set out herein.
An amount of R10 500 00
(Ten Million Five Hundred Thousand Rand), hereinafter referred to as
“the capitalisation amount”,
will be retained by the Bank
to capitalise future interest accruing on the facility.
The “Borrower”
is the principal debtor.
[5] In clause1.2 of
annexure “B” the following appears:
For the purposes of this
Facility Agreement, the Commencement Date will be the date that all
the Bank’s security requirements,
as set out in clause 2 hereof
and any other preconditions as set out herein, for making advances in
terms of the facility have
been fulfilled.
[6] In clause 5.1 of
annexure “B” the following appears:
The facility will be
conditional in all respects upon the provision and registration, if
applicable, of the security, if any, listed
in clause 2 of the
facility agreement and the Bank shall have no obligation under the
facility pending the provision and registration
of the same. The
condition, if any, that security be furnished is for the benefit of
the Bank. The Bank shall be entitled, unilaterally
and at its
discretion to waive fulfilment of any security requirements listed in
clause 2 of the facility agreement or to accept
partial fulfilment of
any security requirements or to release any security that it holds
for the obligations of the Borrower on
written notice to the
Borrower.
[7] In paragraph 11.2 of
the plaintiff’s particulars of claim it is alleged that:
The commencement date of
the facility agreement was the date that all the plaintiff’s
requirements set out in paragraph 2
of the facility letter and other
preconditions had been met.
[8] In paragraph 11.4 of
the plaintiff’s particulars of claim it is alleged that:
The principal debtor
agreed that the facility would expire in 24 months following the
commencement date, being the expiry date.
[9] In paragraph 13 of
the plaintiff’s particulars of claim it is alleged that:
Plaintiff duly complied
with its obligations in terms of the facility agreement, annexure “b”
hereto, and loaned and
advanced the principal debtor the amount of
R46 million as contemplated in paragraph 1.1 of the facility
agreement.
[10] In paragraph 14 of
the plaintiff’s particulars of claim it is alleged that:
On or about 23 July 2009
and in terms of an addendum to “B”, the facility
agreement, a copy whereof is annexed hereto
marked “C”,
the plaintiff and the principal debtor agreed to extend the expiry
date to 25 August, 2009.
[11] In paragraph 15 of
the plaintiff’s particulars of claim it is alleged that:
The facility expired by
no later than 26 August 2009, and became repayable by the principal
debtor on that day.
[12] Counsel
for the contending parties were in agreement that it is a well
established principle of our law that fulfilment of
a suspensive
condition must be pleaded by the party relying on the contract.
Counsel on both sides referred me to the well-known
case of
Resisto
Dairy (Pty) Ltd v Auto Protection Insurance Co. Ltd
.
1
This may explain why much time was taken up with the question of
whether the clauses in issue were truly “conditions”
or
whether they were “terms” and, if so, whether they were
material terms. It is unnecessary to decide whether or not
these
clauses are “suspensive conditions.” I shall, however,
assume, in favour of the defendants, that they are suspensive
conditions. The assumption is made in order to facilitate arriving at
the crux of the matter. In any event, it seems that they
are indeed
suspensive conditions because, if the principal debtor had sought to
enforce the loan agreement, it would have been
open to the bank to
resist the claim on the basis that any one of these conditions had
not been fulfilled. Nevertheless, I make
no final decision in this
regard.
[13] It is, however,
common cause that the clauses in question operate for the benefit of
the bank only. Besides, this much is clear
not only from a plain
reading of clauses 2 and 9 of annexure “B” but also from
clause 5.1 thereof, to which reference
has been made above.
[14]
Notwithstanding the general rule that fulfilment of suspensive
conditions must be pleaded by the party relying on the contract,
in
Van
Jaarsveld v Coetzee
,
2
the court of appeal unanimously agreed with Van Blerk JA when he said
:
Die
voorwaarde is duidelik genoeg bedoel om slegs ten voordeel van die
eiseres to strek. Die eksepsie kan nie staande gehou word
nie.
3
A condition that is
exclusively for the benefit of one party cannot be relied on by the
other party.
[15] Mr
Du Toit
,
who appeared for the excipients, submitted that even though the
clauses in question operated for the benefit of the bank, unless
one
knew when the conditions had been fulfilled, one could not know when
the agreement of loan commenced and, therefore, when it
came to an
end. I would have thought that it is obvious that the loan came into
operation on the date upon which the principal
debtor received the
agreed amount of the loan from the bank. It seems clear enough that
this occurred soon after 13 June 2007,
when the bank received the
security as provided for in clause 2 of annexure “B”. In
any event, as has been mentioned
above, the plaintiff alleges:
in paragraph 13 of its
particulars of claim that the bank loaned and advanced the principal
debtor the amount as contemplated
in clause 1.1 of annexure “B”;
in paragraph 14 of its
particulars of claim that: “On or about 23 July 2009 and in
terms of an addendum to “B”,
the facility agreement, a
copy whereof is annexed hereto marked “C”, the plaintiff
and the principal debtor agreed
to extend the expiry date to 25
August 2009”; and
in paragraph 15 of the
particulars of claim that “The facility expired by no later
than 26 August 2009, and became repayable
by the principal debtor on
that day”.
It is quite clear from
the plaintiff’s particulars of claim, not only that the bank
lent money to the principal debtor but
also that, by the time of the
service of the summons, the amount lent was due for repayment. As
interest is claimed from 3 September
2009, any uncertainty as to the
exact date between 13 June and 26 June 2007 when the principal debtor
received the money is neither
here nor there. The plaintiff relies on
26 August 2009 (i.e. an agreed extension of time rather than any
earlier date) as the date
on which repayment of the debt was due and
claims interest from 3 September 2009 (i.e. a date after 26 August
2009).
[16] To this, Mr
Du
Toit
retorted that although annexure “C” appeared to
contain the signature of someone duly authorised on behalf of the
principal
debtor, there did not appear to be any signature on behalf
of the bank. Be this as it may, it cannot be said that the
plaintiff’s
pleading does not disclose a cause of action or
that the defendants are embarrassed in that they do not know how to
plead thereto.
In any event, as I have already mentioned, the
exception is confined to the ground that the plaintiff fails to
disclose a cause
of action. I can see no prejudice to the defendants.
[17] I fail to see the
defendants’ difficulties in pleading to any one of the
following: (a) whether the bank lent money to
the principal debtor;
(b) the amount thereof; (c) whether the principal debtor’s debt
is due for repayment; (c) whether interest
is due from 3 September
2009; (d) whether interest is correctly calculated at the agreed
rate; and (e) whether they are liable
for the debts of the principal
debtor to the bank in terms of the written agreements of suretyship
upon which the plaintiff relies.
These are the issues raised by the
plaintiff’s particulars of claim.
[18] Rule 18
(4) requires that particulars of claim should contain a clear and
concise statement of the material facts upon which
a plaintiff relies
with sufficient particularity to enable the opposite party to reply
thereto.
4
In my view, the plaintiff has adequately met the standard of pleading
that is required. Besides, sight should never be lost of
“the
evil of too ready a recourse to the taking of exceptions”.
5
The plaintiff’s particulars of claim contain sufficient clarity
for the defendants to know what the case of the plaintiff
is that
they have to meet.
[19] Judgment is given in
favour of the plaintiff against the first, second, third, fourth,
eighth and ninth defendants (and against
the fifth, sixth and seventh
defendants in their capacities as trustees of the Adventure Family
Trust), jointly and severally,
the one paying the others to be
absolved, as follows:
The defendants’
exception is dismissed with costs.
DATED AT JOHANNESBURG
THIS 29
th
DAY OF OCTOBER, 2010.
N.P. WILLIS
JUDGE OF THE HIGH
COURT
Counsel
for the Plaintiff:
.P.G. Robinson
SC
Counsel
for the Defendants (Excipients):
S.F. Du Toit
SC (with him,
J.
Blou
S.C.)
Attorneys
for the Plaintiff: Lowndes Dlamini
Attorneys
for the Defendants (Excipients): Burt Meaden Incorporated
Date
of hearing: 25
th
October, 2010.
Date
of judgment: 29
th
October, 2010
1
1963
(1) SA 632
(A) at 644G.
2
1973
(3) SA 241
(A)
3
At
244G
4
See
Trope
v SA Reserve Bank and Another and Two Other Cases
1992 (3) SA 208
(T) at 210F-211B.
5
See
International
Tobacco Co. of SA Ltd v Wollheim and Others
1953 (2) SA 603
(A) at 613A.