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[2018] ZAECPEHC 39
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De Lauwere v Beaton (1025/18) [2018] ZAECPEHC 39 (14 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no. 1025/18
Date
heard: 7/8/18
Date
delivered: 14/8/18
Not
reportable
In
the matter between:
MARCEL
MARIE DE
LAUWERE
Plaintiff
and
ALAN
ANSLEY
BEATON
Defendant
JUDGMENT
Plasket
J
[1]
The plaintiff, Mr Marcel De Lauwere, (De Lauwere) issued summons
against the defendant, Mr Alan Beaton, (Beaton) for the recovery
of a
loan advanced to Beaton in the amount of R107 000. Beaton filed
a notice of opposition, De Lauwere applied for summary
judgment and
Beaton opposed that application.
The
claim
[2]
De Lauwere pleaded that, on 18 August 2017, he and Beaton entered
into a written loan agreement in terms of which he lent R107 000
to Beaton. In terms of clause 3.3 of the agreement, the loan was to
be repaid ‘within six (6) months of the date upon which
the
loan is advanced to the Borrower or forthwith upon the Borrower
ceasing to be a Member of Allforms Construction Services (Pty)
Limited or ceasing to be employed by that Company’.
[3]
The particulars of claim allege that on 28 August 2017, the loan was
advanced to Beaton by payment, on his instructions, to
Mrs Barbara
Strydom (Strydom) ‘in partial discharge of the Defendant’s
obligations in favour of her arising from the
purchase, by the
Defendant, of certain shares held by her in Allforms Construction
Services (Pty) Ltd’ (Allforms Construction).
[4]
On 15 December 2017, Beaton ceased to be an employee of Allforms
Construction. As a result, he was required to repay the loan.
A
demand was made of him to do so on 2 March 2018, after a six month
period had elapsed since the agreement was concluded. Beaton
did not
comply with the demand.
Beaton’s
opposition
[5]
In his answering affidavit, Beaton admits the loan agreement and the
advance of the money to him by way of the payment to Strydom.
He
avers, however, that De Lauwere’s claim for the repayment of
the loan ‘has been compromised and has been fully and
finally
settled’.
[6]
The money that he borrowed, he said, was paid ‘in partial
discharge of my obligations in favour of Strydom arising [out]
of the
purchase, by me, of 15 shares held by her’ in Allforms
Construction. On 18 December 2017, a settlement agreement was
concluded between himself, Allforms Construction, De Lauwere, Strydom
and Mr Gordon Blumberg which regulated his ‘complete
exit, in
all respects, from Allforms’.
[7]
In terms of the agreement, Beaton was required, inter alia, to take
the steps necessary to enable the transfer of the 15 shares
back to
Strydom or her nominee. He did so and now does not own those shares
and ‘nor do I have the R107 000 which formed
the subject
matter of the agreement of loan’.
[8]
He proceeded to set out his defence as follows:
’
12.
In terms of clause 8 of the agreement of settlement, the terms
thereof are in full and final settlement of the matters dealt
with
therein.
13.
On a proper construction of the agreement of settlement and having
regard,
inter alia
, to matters which were present in the minds
of those concluding the agreement of settlement, the plaintiff has
compromised his
claim against me because the transfer of the shares,
the payment of the purchase price in respect thereof and the
agreement of
loan are matters dealt with either expressly or
impliedly in the settlement agreement. They are issues which have
therefore been
fully and finally settled in terms of the agreement of
settlement.’
Has
a bona fide defence been established?
[9]
The parties to the loan agreement were De Lauwere and Beaton, and no
one else. It placed an obligation on De Lauwere to advance
R107 000
to Beaton, and on Beaton to repay the loan, either within six months
or ‘forthwith’ in the event of him
ceasing to be a
‘member’ or employee of Allforms Construction.
[10]
The settlement agreement was concluded between Allforms Construction,
De Lauwere, Strydom, Blumberg and Beaton. Its purpose
was to regulate
Beaton’s parting of ways with Allforms Construction and its
directors, as both director and employee.
[11]
In doing so, it placed obligations on Beaton to return cellphones to
Allforms Construction; along with De Lauwere and Strydom,
to cancel
agreements in terms of which Beaton had purchased one share from the
former and 15 shares from the latter; to sell his
remaining 35 shares
to De Lauwere; to execute share transfer forms to enable Allforms
Construction’s auditors to transfer
the shares to Strydom and
De Lauwere (or their nominees); and to deliver any share certificates
in his possession to De Lauwere.
[12]
Clause 3.2 provides that ‘no amount will be paid to [Beaton] on
account of his abovementioned resignations’. Clause
4.3
provides, however, that the consideration for the sale of the 35
shares to De Lauwere would be paid by Allforms Construction.
That
payment would take the form of transferring a vehicle, deemed to be
valued at R200 000, to Beaton, and a payment of R300 000,
either plus any credit balance in his loan account or minus any debit
balance in it.
[13]
Clause 7 states that disciplinary proceedings against Beaton would be
withdrawn and clause 8 provides that the ‘terms
of this
agreement record a full and final settlement of the matters dealt
with herein’.
[14]
A compromise is defined by Christie and Bradfield in
Christie’s
The Law of Contract in South Africa
(6 ed) at 473 as the
‘settlement, by agreement, of disputed obligations, whether
contractual or otherwise’. It is, the
authors say, a form of
novation where ‘disputed obligations are settled and replaced
by a contract’. See too Du Bois
(ed)
Wille’s
Principles of South African Law
(9 ed) at 839.
[15]
I have set out the terms of both agreements in some detail in order
to demonstrate that they are not linked to each other in
any way and
that they served entirely different and unconnected purposes. No
mention is made in the settlement agreement of the
loan agreement or,
indeed, the loan. I cannot see any possible basis for concluding that
the obligation to repay the loan was disputed,
that there was a
settlement of a dispute in that regard, and that it has now been
replaced by the settlement agreement.
[16]
The loan agreement does not record the purpose of the loan and nor
does it provide for the payment of the borrowed money to
Strydom: the
instruction from Beaton to pay her the money as the purchase price of
the 15 shares was extraneous to the loan agreement.
When all is said
and done, Beaton, in terms of the loan agreement, borrowed money from
De Lauwere and undertook to pay him back
either within six months or
on ceasing to be a director or employee of Allforms Construction.
[17]
Strydom was not a party to the loan agreement and De Lauwere was not
a party to the sale agreement in respect of the 15 shares.
[18]
The settlement agreement deals with Strydom’s 15 shares in one
clause. It provides for the cancellation of the sale of
the shares
but is silent as to the restitution of the purchase price. If an
obligation to repay the purchase price is an implied
or tacit term of
the agreement, and I express no view on that, the obligation to repay
the purchase price would rest on Strydom,
and no one else.
[19]
No express term of the settlement agreement provides that the loan
advanced by De Lauwere to Beaton was extinguished as a result
of the
cancellation of the sale agreement entered into by Strydom and
Beaton. No tacit term to this effect has been identified,
formulated
or relied upon. The loan agreement is not even mentioned in the
settlement agreement.
[20]
In order to resist an application for summary judgment, a defendant
is required to raise a bona fide defence that is good in
law.
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) para 32;
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426C-D. The defence raised in this matter is
not. As De Lauwere has made out a case for the relief sought, summary
judgment
will be granted in his favour. I shall also award attorney
and client costs, albeit on the Magistrates’ Court scale (as a
result of the quantum involved) because the loan agreement makes
provision for such costs when De Lauwere enforces his rights under
the agreement.
[21]
I make the following order
(a) Judgment is granted against the
defendant for the payment to the plaintiff of R107 000, together
with interest on that
amount
a tempore morae
as from 28
February 2018 to date of payment.
(b) The defendant is ordered to pay
the plaintiff’s costs on an attorney and client scale and on
the Magistrates’ Court
scale.
______________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the plaintiff: K Williams
Instructed
by
BLC
Attorneys, Port Elizabeth
For
the defendant: B Dyke SC
Instructed
by
Brown,
Braude & Vlok Inc, Port Elizabeth