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[2019] ZAGPJHC 462
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Standard Bank of SA Limited v Lantau Trading 365 (Pty) Limited and Others (07550/2019) [2019] ZAGPJHC 462 (8 October 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 07550/2019
In
the matter between:
THE
STANDARD BANK OF SA LIMITED
Applicant
and
LANTAU
TRADING 365 (PTY) LIMITED
(Registration
No: 2011/141489/07)
First
Respondent
BLUESTONE
TRENCH TECHNOLOGIES CC
(Registration
No: 2010/030270/23)
Second
Respondent
KUMESHEN
PILLAY
(ID
No: […])
Third
Respondent
JUDGEMENT
CARSTENSEN
AJ
:
[1]
The applicant seeks an order in terms of the amended notice of motion
which was amended without objection and effected on 15 May 2019.
The applicant seeks cancellation of agreements entered into between
the applicant and the first respondent, return of the assets
and
costs. The question of damages, being the difference between
the balance outstanding on the agreements and the amount
for which
the asset will be sold and/or the value of the asset, is to be
postponed for determination in due course.
[2]
Ms Pillay who appeared for the respondents confirmed that she would
not advance all the points raised in the answering affidavit,
but
restrict her argument to three points.
[3]
The first is that the applicant did not establish a breach in the
agreement in that the certificate of balance relied upon by
the
applicant did not set out how the amount stated in the certificate
was computed.
[3.1] From an analysis of
the papers, it appears that the first respondent was in arrears as at
January 2019 in respect of one instalment
for the first deal, number
[…]1, and approximately three instalments in respect of the
second deal, number […]2.
[3.2] In the answering
affidavit, the respondents contend that there is no breach/es as
alleged, but do not dispute that payments
had not been made or that
the respondents are in arrears, notwithstanding the fact that the
answering affidavit was only signed
on 8 April 2019
[3.3] The respondents
concede that clause 23.12, the “certificate of balance”
clause contained in the “
standard terms and conditions,”
had been complied with, but suggested that there was no proof that
there was any arrears. It was also conceded however that
the
respondents, although denying the breach, had not provided any
evidence to contradict the contents of the certificate of balance.
Ms Pillay also could not refer me to any authority to the effect that
the applicant was obliged to set out how the amount of the
arrears
was calculated. The applicant sets out in the founding
affidavit that the respondents had breached the finance agreements
by
failing to make timeous payments of the amounts due.
[3.4] Thus I cannot find
that the respondents have, on this basis established a defence to the
applicant’s claim.
[4]
The second point raised by Ms Pillay on behalf of the respondents,
was that there was a reference to a suretyship in the founding
affidavit, but in fact the document attached is headed a guarantee,
which she contended was different in nature to a suretyship
as the
document recorded that the guarantor:
“
hereby
unconditionally guarantee and undertake as principal and independent
obligation (and not merely as ancillary obligation)
to and in favour
of the Standard Bank of South Africa Limited …:
__.1 the
due, punctual and full payment of all debts which Lantau Trading 356
(Pty) Limited … now owes or may
in the future owe to the Bank
in terms of or arise in connection with agreements concluded or to be
concluded between the Debtor(s)
and the Bank; and
__.2 to
pay the Bank on first written demand from the Bank without delay, any
and all amounts which are or may become
due and payable in respect of
the Debts.”
[4.1] I am satisfied with
the argument of Mr Viljoen, who appeared for the applicant that
nothing turns on this point. The
document is clear in its
terms. On a reading of its provisions, it is clear that each of
the signatories to the guarantees
undertook to make payment on demand
of all amounts which are due and payable by the first respondent to
the applicant.
[4.2] I also point out
that the document meets all the formal requirements necessary of a
deed of suretyship.
[4.3]
I am of
course bound by the decision of
Vasco
Dry Cleaners v Twycross
[1]
where the court found:
“
When a court is
asked to decide any rights under such agreement, it can only do so by
giving effect to what the transaction really
is, not to what it in
form purports to be.”
[5]
The next point raised by Ms Pillay was that the court should set a
reserve price in respect of the sale of the assets.
[5.1] However the
respondents do not set out what that reserve price should be in the
answering affidavit or set out what the fair
and reasonable market
value of each of the assets are.
[5.2] Ms Pillay suggested
that it is contrary to public policy to sell any assets without a
reasonable reserve price. To do
so would be unfair and
repugnant to the values of society. A fair and reasonable
market related reserve price must be placed
on all goods.
[5.3] Whilst there may be
sympathy for this argument and possibly, a ridiculously low price may
be contrary to public policy, and/or
contrary to the provisions of
the Consumer Protection Act, no basis for this conclusion has been
set out by the respondents.
[5.4] However the
agreement itself provides protection for the respondents, as the
applicant is only entitled to claim the total
amount of repayments
not yet paid and any amounts owing, less the value of the goods as at
the date on which the applicant obtained
possession of the goods.
[5.5] In any event, as
was pointed out by Mr Viljoen, the second answer to this concern is
that the question of damages is to be
postponed and the order which
the applicant is entitled to in this regard is the difference between
the balance outstanding by
the respondents and the amount for which
the assets were sold and/or the value of the assets, whichever is the
greater.
[5.6] I intend to make
this clear in the order.
ORDER
[6]
In the result, I make the following order:
[6.1]
the cancellation of the agreement under
deal number […]1 is confirmed;
[6.2]
the sheriff of the court or his lawful
deputy is authorised, directed and empowered to attach, seize and
hand over to the applicant
the asset, wherever it may be found,
being:
·
Make/model/description:
2016 HPC Steel
Pressings Tri-Axle FLA
·
Chassis number:
AA9B245MBCWLX2566;
[6.3]
the question of damages is postponed
sine
die
;
[6.4]
in the event that there is a shortfall
after the asset has been sold and the balance outstanding by the
respondents to the applicant,
the applicant is granted leave to
approach a court on the same papers, duly supplemented, for payment
of the difference between
the balance outstanding and the amount for
which the asset is sold and/or the fair and reasonable market value
of the asset, whichever
is the greater;
[6.5]
the cancellation of the agreement under
deal number […]2 is confirmed;
[6.6]
the sheriff of the court or his lawful
deputy is authorised, directed and empowered to attach, seize and
hand over to the applicant
the asset, wherever it may be found,
being:
·
Make/model/description:
2012 Top Trailer
Interlink Side Tipper
·
Serial/registration numbers:
[…]4 NW
and […]9 NW
·
Chassis/serial numbers:
ADSM236SAC1ST1207
and ADSM236WAC1ST1206;
[6.7]
the question of damages is postponed
sine
die
;
[6.8]
in the event that there is a shortfall
after the asset has been sold and the balance outstanding by the
respondents to the applicant,
the applicant is granted leave to
approach a court on the same papers, duly supplemented, for payment
of the difference between
the balance outstanding and the amount for
which the asset is sold and/or the fair and reasonable market value
of the asset, whichever
is the greater;
[6.9]
the respondents are ordered to pay the
applicant’s costs of suit, jointly and severally, the one
paying, the other to be absolved.
_________________________
PL
CARSTENSEN
[Acting
Judge of the High Court,
Gauteng
Local Division,
Johannesburg]
DATE OF HEARING:
06/09/2019
DATE OF JUDGEMENT:
08/10/2019
APPEARANCES:
COUNSEL
FOR APPELLANT: Adv JC Viljoen
INSTRUCTED
BY:
Stupel and Berman Inc
COUNSEL
FOR RESPONDENT: Adv Pillay
INSTRUCTED
BY: Aniraj Bauchoo Attorneys
[1]
1979 (1) SA 603
(A)