About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 597
|
|
Brick on Brick Property Investments 23 (Pty) Ltd v Cawood (53224/09) [2010] ZAGPPHC 597 (19 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE NUMBER:
53224/09
DATE: 19/3/2010
BRICK ON BRICK
PROPERTY INVESTMENTS 23 (PTY) LTD
PLAINTIFF
V
CAWOOD:
JOHANNA PETRONELLA
DEFENDANT
JUDGMENT
MABUSE AJ
(1) On 20 January
2010 1 made the following order in the above matter:
(1) The defendant is
hereby granted leave to defend: and
(2) Costs reserved:
I promised then to
furnish reasons later for the said order. These are therefore the
reasons for the order made then.
This is an
application by the plaintiff for summary judgment. According to the
plaintiff s summons, its action against the defendant
is based on.
firstly, an Acknowledgement of Debt and secondly, a cheque issued by
the defendant in favour of the plaintiff payable
on 13 May 2009 and
was subsequently stopped by the defendant.
(2) The plaintiff is
a company with limited liability duly registered in accordance with
the company statutes of this country with
its principal place of
business situated at 104 5
th
Avenue. Highlands
North, Johannesburg. The defendant is an adult female who resides at
875 Besembiesie Street. Montana. Pretoria.
(3) As at 13 May
2009 the defendant’s husband, one Josia Joseph Cawood. was
truly and lawfully indebted to the plaintiff in
the sum of R300 000.
00 in respect of money loaned and advanced to him by the plaintiff
and for which he had on 12 May 2005 signed
and written
Acknowledgement of Debt in which he acknowledged his indebtedness to
the plaintiff in the sum of R300 000.00_and which
he undertook to
refund on or before 13 May 2009. According to the Acknowledgement of
Debt, annexed to the plaintiffs summons as
annexure ‘'A"
repayment of the said amount of R300 000,00 would be secured by way
of a post dated cheque for the same
amount.
(4) As undertaken in
the said acknowledgement of Debt on 13 May 2009, the defendant
delivered a cheque to the plaintiff as security
for such refund. The
cheque was dated 13 May 2009 and was issued by Cranes Crest
Investments 101 for R300 000, 00 in favour of
the plaintiff.
According to the pleadings. Crane Crest Investments 101 (Pty) Ltd is
a company duly registered in terms of the company
laws of the
Republic of South Africa and has its registered office at 875
Besembiesie Street. Montana. Pretoria.
(5) On 3 June 2009
the plaintiff presented the cheque at the bank for payment but the
cheque was dishonoured by non-payment. Payment
of the cheque had been
stopped. In terms of the provisions of section 48(2) (C) of the Bills
of Exchange Act 34 of 1964 notice
of dishonour of the said cheque is.
under these circumstances, dispensed with.
(6)
The plaintiff s case is that the defendant is personally liable to
the plaintiff for the amount of the cheque by reason of the
fact that
when she signed the cheque she did not indicate that she was doing so
on behalf of any legal entity or in any representative
capacity. In
the alternative, and if this court should find that the defendant was
acting on behalf of Cranes Crest Investments
101, the defendant is
indebted to the plaintiff under the following circumstances:
6.1 Crane Crest
Investments 101 (Pty) Ltd is a company duly registered in terms of
the company laws of the Republic of South Africa
and has its
registered office at 875 Besembiesie Street Montanapark, Pretoria.
The defendant is the sole director of the said company.
6.2
The defendant has failed to have the name of the company mentioned on
the said cheque as prescribed by the provisions of section
50 (1) (c)
of the Companies Act NO. 61 of 1973 in that the abbreviations,
“
(Pty)
Ltd.
and
the company's registration number have been omitted. The provisions
of section 50 (3) make the defendant liable to the plaintiff.
For
those reasons the defendant is liable to the plaintiff for payment of
a sum of R300 000. 00.
(7) Section 50(1)
(C) of the said Act provides that:
“
Every
company shall have its name and registration number mentioned in
legible characters in all notices and after official applications
of
the company and in all bills of exchange, promissory notes,
endorsements, cheques, and orders for money or goods purporting
to be
signed by or on behalf of the company and in all letters, delivery
notes, invoices, receipts and letters of credit of the
company".
(8) The application
for summary judgment was opposed by the defendant. In the first place
the defendant denied that she had no defence
to the plaintiffs claim
and that she had entered appearance solely for the purpose of delay.
(9) The plaintiffs
representative or agent and the defendant’s husband are
business partners in the same business. In the
past the said agent or
representative concluded several business transactions with her
husband. The plaintiff s representative
was aware at all material
times that any transaction, in which her husband was involved^ should
be concluded through a company
or close corporation, including the
transaction involving the loan of R300 000.00 which is the subject of
the plaintiff s action
against the defendant.
(10) The plaintiffs
representative demanded, at the time of the ioan of the said amount,
that as security for the refund of the
said sum of R300 000. 00,
Cranes Crest Investments (101) (Pty) Ltd, a company with limited
liability and duly registered as such
in terms of the company
statutes of this country, should issue the plaintiff with a post
dated cheque payable on 13 May 2009.
(11)
The said plaintiffs representative was at all times aware that Cranes
Crest Investments (101) (Pty) Ltd was a shareholder in
Adpoint
Trading 77 (Pty) Ltd which in turn was the registered owner of the
Development Known as Tanglewood at Roodeplaat Dam in
Pretoria.
(12) The defendant
duly issued the cheque and made it payable on 13 May 2009 on
condition that the Tanglewood development would
be sold successfully.
The said condition had by 13 May 2009 not been fulfilled as the
aforementioned development had not been sold
by the said date.
(13)
At the time the plaintiffs representative received the cheque, he was
fully aware that Crane’s Crest Investments (101)
(Pty) Ltd was
a registered company and therefore that he was dealing with a
registered company. As a consequence of an administrative
mistake by
the issuing bank, namely First National Bank, the words
“
(Pty)
Limited"
and
the company's registration number do not appear on the cheque. The
defendant’s attitude is that she should not be had
liable for
the mistake committed by her bank and furthermore that instead of
holding her alone liable on the cheque, the bank that
committed the
error should be held liable.
(14) According to
the defendant the condition under which the cheque for R300 000, 00
was issued has not been fulfilled: the plaintiff
was aware during all
material times that, notwithstanding the fact that the relevant
cheque did not have all the relevant details
as prescribed by the
provisions of section 50(1)(C) of the Act, it was however dealing
with a company and furthermore that the
plaintiff could not, under
those circumstances, hold her personally liable for the cheque.
(15) It is dear
therefore, and so it was submitted by the plaintiff s counsel, that
the only reason the plaintiff holds the defendant
personally liable
for the amounv of the cheque is that she issued a cheque that did not
comply with the requirements of section
50 (1)(C) of the Act. Section
50(1) (c) of the said Act provides that:
“
Every
company shall have its name and registration number mentioned in
legible characters in all notices and other official publications
of
the company and in all bills of exchange, promissory notes,
endorsements, cheques and orders for money or goods purporting o
be
sig
ne
d
by or
on behalf
of the company and in all letters, delivery notes, invoices,
receipts, and letters of credit of the company. "
(16) In the
pleadings the plaintiff seeks to hold the defendant personally liable
for the amount of the cheque in terms of the provisions
of section 50
(3) (c) of the Act. The said section states that:
“
Any
director or officer of the company or any person on its behalf -(c)
issues or authorizes the issue of any notice or other official
publication of the company or signs or authorizes to be signed on
behalf of the company any bill of exchange, promissory note,
endorsement, cheque, wherever its name is not mentioned in manner
aforesaid, he shall be guilty of an offence and shall furthermore
be
liable to the holder of the cheque for the amount thereof unless it
is duly paid by the company."
(17)
In order to avoid the court granting the application for summary
judgment, the defendant must raise an issue that is justiciable.
One
of the defences that the defendant has raised is that,
notwithstanding the provisions of section 50 (1)(c) of the Act. the
plaintiff was aware at all material times that he was dealing with a
company. In the circumstances, plaintiff should have issued
the
summons against the company and not against her personally. The
defendant found support for this contention in
G
& C Construction v. De Beer en n
Ander
2000
(2)
SA
378
TPD at 378
.
Where a party is aware that he is dealing with a company it is that
company that he must sue.
(18) In the
circumstances it would appear that the fact-that-a party knew that he
was dealing with the company overrides the fact
that the party that
is been sued has failed to comply with the provisions of section
50(l)(c) of the Act. In my view, the defendant
has raised a good
defence against the plaintiffs application for summary judgment. The
plaintiffs summary judgment could not, for
that reason, succeed and
was accordingly dismissed.
P. M. MABUSE
ACTING JUDGE OF THE
HIGH COURT
Appearances
:
Plaintiff's A
ttorneys: Finkeistein & Associates A ttomeys
Plaintiff s
Counsel: Adv. DJ van Heerden
Defendant's
Attorneys: PJ Kteynhans Ingelyf
Defendant’s
Counsel: Adv. C van den Berg
Date Heard: 18
January 2010
Date of Judgment:
20 January 2010