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 623
|
|
Nansa Import Enterprises CC t/a Olifants Rentals v Mechter CC and Another (63231/09) [2010] ZAGPPHC 623 (21 June 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
Number: 63231/09
In the matter
between:
NANSA IMPORT
ENTERPRICES CC
t/a OLIFANTS
RENTALS
(Reg No:
1993/010850/23
......................................................................................................................
Plaintiffs
and
MECHTER CC
(Reg No:
2002/007321/23)
...............................................................................................................
1
st
Defendant
RICHARD MICHAEL
ASHMAN
(ID
No:
[…])
...................................................................................................................................
2
nd
Defendant
JUDGMENT
MNGQIBISA-THUSI
J
[1] Plaintiff is
suing the defendants for provisional sentence on an acknowledgement
of debt signed by the second defendant on behalf
of the first
defendant on 10 July 2009. The second defendant also bound himself as
surety of the principal debt in terms of the
acknowledgement of debt.
[2] In terms of
the acknowledgement debt the first defendant admitted its
indebtedness to the plaintiff in the sum of R 279 990.00
and
guaranteed payment thereof on or before 30 September 2009. The
defendants have not paid the amount due. The plaintiff is now
seeking
provisional sentence in terms of which the defendants are held
liable, jointly and severally, to pay the plaintiff the
stated amount
on the summons for provisional sentence.
[3] It is common
cause that the signature on the acknowledgement of debt on which the
application for provisional sentence is based
is that of the second
defendant signing in his personal capacity as surety to the principal
debt and in his representative capacity,
on behalf of the first
defendant. However, the defendants have raised as a defence, the fact
that the acknowledgement of debt was
signed under duress, alleging
that the acknowledgement of debt was signed by the second defendant
after the plaintiff had threatened
the second defendant with arrest
on a charge of theft. This issue will be dealt with later.
[4]
The defendants have raised two points
in
limine
:
4.1
that the acknowledgement of debt is not for an ascertained sum of
money;
and
4.2
that the acknowledgement of debt is not unconditional.
[5] The plaintiff
and the first defendant, in which the second defendant is a member,
entered into an agreement in terms of which
the first defendant sold
a trailer business to the plaintiff. After the plaintiff had taken
over the business, disputes arose which
resulted in the plaintiff
removing some of the stock (trailers) from the first defendant's
business premises and the second defendant
in turn removed the axles
from some of the trailers on first defendant’s business
premises so as to prevent the plaintiff
from further removing any
more trailers.
[6] The plaintiff
laid a charge of theft against the second defendant. Facing the
possibility of arrest, the second defendant signed
the
acknowledgement of debt on behalf of the first defendant with him as
a surety for the first defendant’s indebtedness
to the
plaintiff for an amount of R 279 999.00.
[7]
Provisional sentence may be granted based on,
inter
alia,
an
acknowledgement of debt signed by a debtor in terms of which he
unconditionally admits his indebtedness to a creditor for an
ascertained sum of money. Rule 8 of the
Uniform
Rules of Court.
The
plaintiff only has to prove that the signature on the document is
that of the defendant. The onus would then be on the defendant
to
prove that the probabilities in the principal case are in his favour.
Points
in limine
The
acknowledgement of debt being conditional
[8] Clause 2 of
the acknowledgement of debt reads as follows:
“
2.1
The DEBTOR guarantees to pay and cause the CREDITOR to be paid the
total capital amount of R279 990.00 (two hundred and seventy
nine
thousand and nine hundred and ninety rand) on or before end of
September 2009(date).
2.2
...
2.3
As some of the parts and equipment has not been valued, the CREDITOR
will accept part of the capital amount to be offset by
means of
replacing the parts or equipment with similar parts or equipment
provided the acceptance thereof rests and lies solely
upon the
discretion of the CREDITOR.”
[9]
Firstly, the defendants contend that
ex
facie
the
acknowledgement of debt
(the
document),
the
amount stipulated therein as being owed is not an ascertained amount
since the agreement provides that part of the capital amount
can be
offset by means of replacement parts or equipment. That before the
total capital amount can be determined, the offset first
has to be
calculated.
[10]
The plaintiff has correctly contended that the fact that the
agreement refers to an offset, does not detract from the fact
that
the capital amount is ascertained. From the document, it is clear
that the first defendant has acknowledged that he owes the
plaintiff
a certain capital amount, which amount is stated as being R279
999.00. Nothing turns on the fact that part of such capital
amount
can be offset by replacement of parts and equipment. I am of the view
that from the document the amount owed by the first
defendant to the
plaintiff is R279 999.00 and therefore this point
in
limine
fails.
[11] Secondly,
the defendants contend that the payment of the debt is subject to a
condition that certain meetings between the parties
were to be held
during which the total indebtedness of the defendants to the
plaintiff would be finalised. In this regard the defendants
rely on
hand written inscriptions made to an annexure attached to the
document, particularly inscription 2 which reads as follows:
“
(2)
The balance of the civil case will be addressed on Thursday coming
week as soon as the criminal side has been sorted out. The
meeting to
move forward and sort out all the problems will be addressed at your
earliest convenience preferably Thursday 16
th
July 2009 this coming week. I hope you find this in order.”
[12]
The above quotation refers to problems being sorted out by 16
th
July 2009. However, and taking into account the non-variation clause
contained in the agreement, it is not clear how the defendants
would
argue that the further meetings between the parties will affect the
agreed upon capital amount indicated on the document.
In this regard
I am of the view that the defendants point
in
limine
should
also fail.
[13] In order to
avoid provisional sentence the defendants are alleging that the
signature of the second defendant on the document
was obtained
through duress. The defendants base this allegation on the fact that
after disputes arose as to who owed what, the
second defendant had
removed axles from some of the trailers on the first defendant’s
business premise in order to prevent
the plaintiff from removing any
further trailers from the first defendant’s business premises.
As a result the plaintiff
had laid a charge of theft against the
second defendant.
[14] The
defendants contend that faced with the possibility of the second
defendant being arrested and detained on a weekend, the
second
defendant had been coerced into signing the acknowledgement of debt
in order to avoid being arrested. That the threat of
arrest was
imminent since a captain Packree had kept on calling the second
defendant, threatening him with arrest if he did not
sign the
acknowledgement of debt.
[15] The second
defendant further contends that even though his legal representative
had advised him not to sign the document presented
to him if he was
not satisfied with him and promised to assist it should he be
arrested, the second defendant had signed it as
he felt that if he
was arrested, he would be held in custody for the weekend and his
minor child under whose care she was, would
not be taken care of
whilst he was in custody.
[16]
The plaintiff denies that the second defendant was forced to sign the
acknowledgement of debt. The plaintiff further contends
that even if
the second defendant was coerced into signing, the threat of arrest
was not unlawful or
contra
bonos mores.
[17]
In
Arend and
Another
v
Astra Furnishers
(Pty) Ltd
1974
(1) SA 298
(CPD) at 306 A-B the court held that:
“
Where
a person seeks to set aside a contract, or resist the enforcement of
a contract, on the ground of duress based upon fear,
the following
elements must be established:
(i)
The fear must be a reasonable one.
(ii)
It must be caused by the threat of some considerable evil to the
person concerned or his family.
(iii)
It must be the threat of an imminent or inevitable evil.
(iv)
The threat or intimidation must be unlawful or
contra
bonos mores.’’'
[18]
I am of the view that the use of a possible prosecution of the second
defendant unless he signs the acknowledgement is
contra
bonos mores.
The
threat of arrest unduly forced the second defendant to agree to terms
which he would in all probability not have agreed to in
view of the
disputes between the
parties as to the amounts each
party owes to the other. The threat in this case was real in that
charges had already been laid against
the second defendant. The
threat of arrest thereby rendered the agreement contained in the
acknowledgement of debt voidable at
the instance of the innocent
party, in this instance being the second defendant. The second
defendant did not sign the acknowledgement
voluntarily. I am of the
view that such dispute should be resolved through trial proceedings
which the plaintiff could still pursue.
[19] In the
premises I do not think that the plaintiff has satisfied all the
requirements for the granting of provisional sentence
in these
circumstances.
[20] Accordingly
the application for provisional sentence is dismissed with costs.
MNGQIBISA-THUSI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
PRETORIA