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[2011] ZAGPPHC 13
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Business Zone 679 (Pty) Ltd and Another v Nedbank Limited (51412/2010) [2011] ZAGPPHC 13 (11 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NO: 51412/2010
DATE:
11/02/2011
In
the matter between:
BUSINESS
ZONE 679 (PTY) LTD
...........................................
1
st
Excipient/ 1
st
Defendant
LAURENCE
STEPHEN BIRD
.................................................
2
nd
Excipient/2
nd
Defendant
and
NEDBANK
LIMITED
...................................................................
Respondent/Plaintiff
JUDGMENT
MNGQIBISA-THUSI
J
[1]
The defendants have noted an exception to the Plaintiff's particulars
of claim on the ground that they lack the necessary averments
to
sustain a valid cause of action and that they should be struck out
and the Plaintiff pay the costs thereof.
[2]
The plaintiff has issued summons on the defendants claiming payment
of an amount of R 107 691.08 for goods delivered but not
paid for by
the first defendant. The plaintiff is also claiming interest on the
capital amount and costs.
[3]
The
claim arises out of a written agreement, termed the 'Master Rental
Agreement'
("the
agreement") entered into between the first
defendant
and
CentraFin
(Pty) Ltd ("CentraFin") for the hire of certain goods.
Further, the second defendant had bound himself as surety
and
co-principal debtor under the agreement.
[4]
In terms of clause 9.1 of the agreement, CentraFin ceded its rights
under the agreement to the plaintiff. The plaintiff is therefore
suing in its position as a cessionary.
[5]
In its Notice of exception in terms of Rule 23 of the Rules of Court,
the defendants plead, inter alia, as follows:
"5.
5.1
5.2
It
appears from annexure "A" that a reference to the "hirer"
is a reference to CentraFin (Pty) Ltd and a reference
to "the
user" is a reference to Business Zone 679 (Pty) Ltd.
5.3
The
fulfilment of a suspensive condition must be alleged and proved by
the party relying upon the agreement, ie the Plaintiff in
the present
action.
5.4
Nowhere
within the present Particulars of Claim is any allegation to the
effect that the aforementioned suspensive condition has
been complied
with or not alternatively waived by the parties.
5.5
Non-compliance
with a suspensive condition does not give rise to a binding
agreement.
In
the premises the Plaintiff's Particulars of Claim lacks the necessary
averments in order to sustain a valid cause of action against
the
First and/or Second Defendant."
[6]
The agreement which was annexed to the plaintiff's particulars of
claim as Annexure "A", provides, inter alia,
in clause 23
that:
"This
agreement is subject to the fulfilment of the following suspensive
condition to the satisfaction by the hirer that the
user has
furnished to the hirer with proof to its satisfaction that the
provisions of the
Public Finance Management Act 1 of 1999
, the
Schedules and Regulations thereto as amended (the PFMA) in relation
to the hire of goods and any security referred to in this
agreement
have been complied with."
[7]
The defendants' argument is that since the agreement contains a
suspensive clause, the common intention of the parties is clear
from
the language in the agreement, namely, that the validity of the
agreement is dependent on the fulfilment of the condition
being that
the defendant must provide the plaintiff with proof to its
satisfaction that it has complied with the provisions of
the PFMA and
the Schedules and Regulations thereto in relation to the hire of
goods and any security referred to in the agreement.
[8]
It was submitted on behalf of the defendants that the plaintiff has
not pleaded the suspensive condition or the fact that the
condition
has been fulfilled. It is the defendants' contention that since the
Plaintiff has not pleaded that the suspensive condition
has been
fulfilled, no agreement came into being between the Plaintiff and the
defendants and therefore the plaintiff does not
have a cause of
action against the defendants.
[9]
The submission of the plaintiff is that the agreement has to be
looked at as a whole in order to determine what the intention
of the
parties was at the time it was concluded. It was submitted on behalf
of the plaintiff that the clause (23) upon which the
defendants are
basing their exception should be read with clause 24 of the agreement
which would render its particulars of claim
not excipeable as
contended by the defendants.
[10]
It was argued on behalf of the defendants that if one were to read
the agreement as a whole, in particular clause 23 and 24,
one would
come to the conclusion that the agreement became valid from the time
that the first defendant attached his signature
to the agreement.
[11]
Clause 24 of the agreement reads as follows:
The
User by its signature hereto, warrants to the Hirer that it has
complied with all the provisions of the PFMA, the Schedules
and
Regulations thereto, as amended in relation to the agreement and any
security referred to, and undertakes that it will continue
to do so
for the duration of the Agreement."
[12]
It was further submitted that consequently since the suspensive
condition was fulfilled by the signature of the first defendant,
a
valid and enforceable agreement came into being. It was further
argued on behalf of the plaintiff that since clause 23 related
to
public entities which were governed by the PFMA, the agreement with
the first defendant could not be interpreted in a way in
which it
would be expected that the first defendant being a private entity
would have to comply with the PFMA and its regulations.
[13]
I tend to agree with the argument of the plaintiff. Since both the
plaintiff and the first defendant are private entities,
it could
never have been contemplated by the parties at the time the agreement
was entered into that the first defendant would
have to comply with
the PFMA and its regulations.
The
fact that the clauses formed part of the agreement must have been an
oversight on the side of both parties to the agreement.
It is my view
further that it was not necessary for the plaintiff to have pleaded
compliance with the suspensive condition since
a valid agreement
existed when the action was launched.
[14]
Accordingly the following order is made: 'The exception is
dismissed with costs.'
MNGQIBISA-THUSI
Judge
of the North Gauteng High Court