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[2023] ZAGPJHC 533
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Business Partners Limited v Kleiner (2021/25244) [2023] ZAGPJHC 533 (9 May 2023)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NUMBER:
2021/25244
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
22.05.23
In
the matter between:
BUSINESS
PARTNERS LIMITED
Plaintiff
and
FEDRIG
KLEINER
Defendant
Neutral
Citation
:
Business Partners Limited v Fedrig Kleiner
(Case No: 2021/25244) [2023] ZAGPJHC 533 (09 May 2023).
JUDGMENT
WANLESS AJ
Introduction
[1]
In this matter Business Partners Limited ("
the Plaintiff
")
seeks Summary Judgment against Fedrig Kleiner, an adult male ("
the
Defendant
"), jointly and severally, together with any
amounts recovered by the Plaintiff from the liquidation proceedings
of K&K
Italian Craft (Pty) Limited ("
the Principal
Debtor
") as follows:-
1.1
Payment of the sum of R4 025 073,91, together with interest thereon
at the rate of prime plus 4% (being 14.5% as at 25 December
2022)
calculated daily and compounded monthly in arrears as aforesaid,
calculated from 26 December 2022 to date of payment, both
days
inclusive.
1.2 Cost of suit on the
scale as between attorney and client.
1.3 That the order be
served on the liquidators of the principal debtor.
[2]
The legal nexus between the parties arose from a written agreement of
loan ("
the loan agreement
") concluded between the
Plaintiff and the Principal Debtor together with an addendum
thereto. In terms of the loan agreement,
R3 million was lent
and advanced to the Principal Debtor by the Plaintiff.
[3]
The indebtedness of the Principal Debtor was secured by registration
of a mortgage bond over an immovable property ("
the
property
") owned by the Principal Debtor. The relevance of
same will become apparent later in this judgment. However, it is
worthy
to note at this stage that the Plaintiff does not seek an
order that the property be declared specially executable.
[4]
As further security for the amount advanced by the Plaintiff to the
Principal Debtor the Defendant concluded a suretyship
agreement in
terms of which the Defendant bound himself as surety and co-principal
debtor
in solidum
in favour of the Plaintiff for the
indebtedness due by the Principal Debtor to the Plaintiff in an
unlimited amount.
[5]
The Plaintiff avers that the Principal Debtor has breached the terms
of the loan agreement by failing to make payment
of the monthly
instalments due in terms thereof. Consequently, the full
indebtedness in terms of the loan agreement is due
and payable.
It is common cause between the parties that the Principal Debtor has
been wound-up.
Defences
relied upon by the Defendant to avoid Summary Judgment
[6]
When the Defendant pleaded to the Plaintiff's Particulars of Claim
and filed his Affidavit Resisting Summary Judgment,
he raised a
plethora of defences. This seems to have become the norm in Summary
Judgment applications in this Court. Thankfully,
at the hearing of
this application, Mr Allis, the Defendant's attorney who appeared on
behalf of the Defendant, advised this Court
that the only defence to
the Plaintiff's claim which the Defendant persisted with was that of
prescription. In the premises, the
parties confined their argument to
that point only and this was the only defence of the Defendant which
it was necessary for this
Court to take into consideration when
deciding whether to grant or refuse the Plaintiff's application for
Summary Judgment.
[7]
The Defendant avers that the Principal Debtor made the last payment
on the account in terms of which the loan agreement
was conducted
during 2017 and the summons was served during June 2021, more than
three years later. Thus, the Defendant avers that
the Plaintiff's
claim in terms of the agreement has prescribed. In the affidavit in
support of the Summary Judgment application
the Plaintiff states that
the last payment which was made into the relevant account was made on
8 June 2019. In support of this
contention, a transaction history is
attached to the said affidavit.
[8]
Mr Allis conceded (correctly) that the payment of a further amount
towards the indebtedness constitutes an act equivalent
to
acknowledgement of indebtedness which will cause prescription to be
interrupted and commence running afresh in terms of subsections
14(1)
and 14(2) of the Prescription Act, 68 of 1969 ("
the Act
").
[9]
He also
accepted the principle as enunciated in the matter of
Jans
v Nedcor Bank Ltd
[1]
that interruption of prescription in relation to a Principal Debtor
resulted in interruption of prescription in relation to a Surety.
Furthermore, it is clear from the Defendant's Plea that it is common
cause between the parties that the amount advanced to the
Principal
Debtor in terms of the loan agreement was secured by way of a
mortgage bond. Hence, the applicable prescription
term which
would apply is a 30-year period
[2]
and the indebtedness due to the Plaintiff by the Defendant would
likewise not have prescribed.
[10]
Faced with these difficulties, Mr Allis was left with having to
submit, from the Bar, that his instructions were that the payments
made which interrupted prescription were not made by his client (the
Defendant) and that it would be equitable if this Court refused
Summary Judgment and allowed the liquidators of the Principal Debtor
to deal with the property. Regrettably, this is not a
bona fide
defence to Summary Judgment, nor does it raise an issue for trial.
[11]
In light of the aforegoing, it is clear that the application for
Summary Judgment should be granted, with costs. At the
hearing
of the application, an updated Certificate of Balance was handed to
this Court by Plaintiff's Counsel. There was (correctly)
no objection
thereto by Mr Allis. Summary Judgment will be granted in terms
thereof.
[12]
It is important to note that the brevity of this judgment and the
relative simplicity thereof does not align with the lapse
of time
between the hearing of the opposed application on this Court's
Opposed Motion roll and the delivery thereof. The sole reason
therefor is the onerous workload under which this Court has been
placed which has prevented this Court from dealing herewith at
an
earlier stage.
Order
[13]
This Court makes the following order:
1.
Summary Judgment is granted in favour of the Plaintiff against the
Defendant, jointly and severally together with any amounts
recovered
by the Plaintiff from the liquidation proceedings of K&K Italian
Craft (Pty) Limited, as follows:
1.1 Payment of the
sum of R4 025 073,91 together with interest thereon at the rate of
prime plus 4% (being 14.5% as at 25
December 2022) calculated daily
and compounded monthly in arrears as aforesaid, calculated from 26
December 2022 to date of payment,
both days inclusive.
1.2 Costs of suit
on the scale as between attorney and client.
1.3 This order
shall be served on the liquidators of K&K Italian Craft (Pty)
Limited.
B.C. WANLESS
Acting Judge of the High
Court
Gauteng Division,
Johannesburg
Heard
: 17 January
2023
Ex Tempore:
09 May
2023
Transcript
:
22 May 2023
Appearances
For
Plaintiff
:
CL
Markram-Jooste
Instructed
by
:
Strydom
Britz Mohulatsi Attorneys.
For
Defendant
:
IT
Allis
Instructed
by
:
Allis
Attorneys
[1]
[2003] 2 All SA 11 (SCA).
[2]
Subsection 11(a)(i) of the Act.