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2024
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[2024] ZAFSHC 4
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J.H.V v Centlec (SOC) Ltd and Others (2205/2023) [2024] ZAFSHC 4 (23 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 2205/2023
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
J[…]
H[…] V[…]
Applicant
And
CENTLEC
(SOC) LTD
First
Respondent
MANGAUNG
METRO MUNICIPALITY
Second
Respondent
LOURENS
HERMANUS PIENAAR N.O.
Third
Respondent
(In
his capacity as trustee of the PIENAAR TRUST
Registration
Number: IT1[…])
H[…]
T[…] V[…]
Fourth
Respondent
CORAM:
MTHIMUNYE, AJ
HEARD
ON:
26 OCTOBER 2023
DELIVERED
ON:
23 JANUARY 2024
[1]
The applicant herein (Mr V[…]) seeks an
order declaring that he is not indebted to the first respondent
(Centlec) for payment
of an amount of R3 748 442.21 or any
amount in terms of Centlec account number 5[…] on the basis
that the debt
was extinguished by prescription as intended in
section
10(1)
of the
Prescription Act, 68 of 1969
. The applicant further
seeks costs against the first respondent.
[2]
The first respondent opposes this application
and brought a counter-claim in the amount of R2 616 960.35,
plus interest
at the prescribed rate of 11,25% per annum, being
the clearance figures declared and issued by the first respondent on
10
December 2020 following the applicant’s request to the first
respondent; alternatively to declare the applicant contractually
bound or liable to pay the outstanding account, currently or
previously held by him with the first respondent under account number
5[…] as per the clearance figure issued to him by the first
respondent on 10 December 2020.
[3]
The first respondent is a private company with
limited liability wholly owned by the second respondent. The second
respondent is
joined herein as the sole shareholder of the first
respondent and only in as far as it has a real and substantial
interest in the
relief sought against the first respondent. Unless it
opposes this application, no relief is sought against the second
respondent.
[4]
The third respondent is a major male and the
owner of Portion 4 of Farm D[…] 3[…], Bloemfontein
(“the farm”).
He is joined herein in his capacity as a
trustee of the Pienaar Trust and only in as far as he has a real and
substantial interest
in the relief sought against the first
respondent and unless he also opposes, no relief is sought against
him. The fourth respondent
is a major female businessperson to whom
the applicant was once married until their divorce in 2009. She is
also joined herein
in as far as she has a real and substantial
interest in the relief sought against the first respondent. Again,
unless she opposes,
no relief is sought against her.
[5]
On or about 20 October 2015, the fourth
respondent entered into a written lease agreement with the third
respondent in terms of
which the fourth respondent leased certain
arable fields on Portion 4 of the farm for the period 1 November 2015
to 31 December
2020. Although at that time the applicant was no
longer married to the fourth respondent, he was, at all relevant
times acting
as her farm manager and also for RZT Zelpy 4243 (Pty)
Ltd (“RZT”), a company owned by the applicant’s
family.
RZT took over the lease of the farm from Steenkamp Boerdery
in 2012. The lease expired in 2015, just before the fourth respondent
entered into another one with the third respondent. The applicant
started farming on the farm during 2012 whilst it was still leased
by
Steenkamp Boerdery.
[6]
From 2012 (month not mentioned in the papers)
to 1 September 2016, the first respondent supplied electricity to the
applicant under
account number 500[…] for use on the farm. The
applicant’s last payment to the first respondent was on 20
October
2014. Despite receiving statements and reminders from the
first respondent, the applicant made no further payments. In August
2016
the applicant received an account requesting payment of an
amount of R1 783 128.35 for electricity allegedly used on
the farm. Aggrieved by the amount, the applicant instructed his
attorneys who then wrote a letter to the first respondent denying
liability and disputing the amount and demanding a recalculation of
the applicant’s consumption and liability, and further,
to
immediately restore electricity supply to the applicant. On 26 August
2016, the first respondent through its employee Ayanda
Pini, sent an
email with calculations to the applicant and his attorneys, to which
there was no response.
[7]
On 21 September 2017 the applicant’s
attorneys again wrote a letter to the first respondent disputing the
applicant’s
indebtedness to the first respondent and stating
that no electricity was supplied to the applicant since 01 September
2016, a day
on which it was disconnected. Subsequent correspondence
was exchanged between the applicant’s attorneys and the first
respondent
and / or Medaco collections, particularly regarding the
institution or not of legal proceedings. I must mention herein that
the
first respondent confirms in its answering affidavit that it is
yet to issue summons against the applicant for payment of the
outstanding
account with account number 500[…] and for this
reason, the first respondent argued that these proceedings were
pre-emptive
and superfluous at this stage, and as such the applicant
must bear the costs hereof.
[8]
In essence, the applicant denies liability for
payment of R3 748 442.21 and pleaded that this is a debt as
intended in
section 10(1)
of the
Prescription Act, 68 of 1969
and
therefore since the debt became due on 1 September 2016 when the
electricity supply was disconnected, the debt has prescribed.
He
avers that prescription was not interrupted as he has neither made
any payment after 1 September 2016 nor acknowledged any liability.
[9]
On or about 30 July 2020, the third and the
fourth respondent entered into a written addendum to the lease
agreement extending the
lease by a period of two months for a rent
amount of R200 000.00 payable on or before 12:00 on 31 December
2020. On the same
day, the applicant and the third respondent entered
into a written addendum deed of suretyship. The lease addendum was
subject
to the extension of the deed of suretyship signed by the
applicant in favour of the third respondent to 31 December 2020,
which
was done.
[10]
On or about 27 August 2020, the applicant,
third and fourth respondent entered into a written memorandum of
understanding for the
third respondent to avail the farm, subject to
the lease agreement and addendums thereto, to jointly with the
applicant, farm,
plant and harvest wheat and further procure farming
necessities. In the same agreement, the applicant and the fourth
respondent
agreed that they will pay, amongst others, the outstanding
account of the first respondent (Centlec) with account number 500[…]
as per the clearance certificate issued by Centlec on 10 December
2020. The relevant clause reads:
“
6.7
WLK Dienste and JH V[…] hereby irrevocably confirm and agree
that they shall, before close
of business on 31 December 2020, fix,
alternatively resolve issues in respect of, in the further
alternative pay the following
damages and/or accounts in respect of
the property:
6.7.1.
Outstanding account of Centlec, with account number 500[…], as
per the clearance certificated
(sic) to be issued by Centlec on 10
December 2020 …”
[11]
It is this agreement between the applicant,
third and fourth respondent and more particularly this clause
pertaining to the payment
of the Centlec account 500[…] that
the first respondent is relying on and argues that in this clause,
the applicant irrevocably
confirmed his liability and agreed and
undertook that he, together with the fourth respondent, shall pay the
outstanding account
of Centlec with account number 500[…] as
per clearance certificate that was issued by Centlec on 10 December
2020 for payment
of the amount of R2 616 960.35. This debt,
the first respondent argues, arose on 31 December 2020 and therefore
has not
prescribed.
[12]
The first respondent argues that Clause 6.7.1
in the agreement between the applicant, the third and the fourth
respondent amounted
to an acknowledgement of the debt by the
applicant to Centlec in respect of the figures as determined on the
clearance certificate
issued by Centlec on 10 December 2020.
[13]
The applicant contends that the first
respondent was not a party to the memorandum of understanding entered
into by the applicant,
third and fourth respondent on 27 August 2020
and further that, at the time he entered into the agreement with the
third and fourth
respondent on 27 August 2020, his dispute regarding
re-calculations remained. Although the applicant claims that his
dispute with
the first respondent was still active at the time of the
agreement of 27 August 2020, yet he does not take this court into
confidence
on why he never responded to the email sent by the first
respondent’s employee on 26 August 2016.
[14]
The applicant further argued that the debt arose on 1 September 2016
when the
electricity was disconnected. The first respondent contends,
however, that even if this court may agree with the applicant, that
the debt arising from whenever the applicant stopped making payments
or the electricity was disconnected, has prescribed, the one
arising
out of the agreement of 27 August 2020 between the applicant; third
and fourth respondent has not prescribed as it only
arose on 20
December 2020 which is the last date for compliance by the applicant
and the fourth respondent with their obligation
created by clause
6.7.It is evident that at the date of the hearing of this matter the
debt that arose on 20 December 2020 had
not prescribed.
[15]
In my view, the question that this court must
answer is whether or not clause 6.7.1 of the agreement entered into
on 27 August 2020
between the applicant; the third and fourth
respondent amounts to an acknowledgement of debt or liability to the
first respondent
by the applicant. It is trite that in terms of
section 14(1)
of the
Prescription Act, an
acknowledgement of debt /
liability does interrupt prescription. If the answer to the first
question is in the positive, it follows
therefore that the order that
the applicant is not indebted to the first respondent for a specific
amount or any amount at all
cannot be granted.
Section 14(1)
of
the
Prescription Act 68 of 1969
states as follows:
“
1. The running
of prescription shall be interrupted by an express or tacit
acknowledgement of liability by the debtor.”
[16]
The applicant contends that clause 6.7 did not
amount to an acknowledgement of debt since it was not made to the
first respondent
i.e. the respondent was not a party to the
agreement.
Section 14
of the
Prescription Act does
not state
to whom the acknowledgement must be made for it to interrupt
prescription, it only states that it must be made by the
debtor. The
applicant, in its averment that the acknowledgement must be made to
the creditor, provided no binding authority for
same. This court
found no such authority to the fact that indeed it must be made to
the creditor, and in my view, that is not the
determining factor for
the validity and effect of the acknowledgement.
[17]
In
Lieberman v
Santam Ltd (168/98)
[2000] ZASCA 173
; Lieberman v Santam Ltd
2000 (4)
SA 321
(SCA),
the Supreme Court of
Appeal held that:
“…
On a
proper construction of the agreement it is clear, in my view, that it
created a new contractual foundation for a valid and
enforceable
obligation to pay which existed independently of any previous
obligation under the Act… In view of the express
acceptance of
liability for such damages and the undertaking to pay, it was
thereafter no longer open to the respondent to deny
liability”.
From this dictum, it is
clear that a provision like the contested clause 6.7 in an agreement
does amount to an acknowledgement of
liability. It is therefore my
considered view that as much as the first respondent was not a party
to the agreement entered into
by the applicant; third and fourth
respondents on 27 August 2020, the evidential value of clause 6.7 is
that it clearly acknowledges
the indebtedness of the applicant to the
first respondent for an amount of R2 616 960.35 as
reflected on the clearance
certificate issued by the first respondent
in respect of account number 500[…].
[18]
I now turn to deal with the issue of costs.
Costs are governed by two principles, firstly; that unless expressly
otherwise enacted, the granting thereof rests within the discretion
of the court, which discretion must be exercised judiciously; and
secondly, that generally, costs follow the result i.e. they are
awarded in favour of the successful litigant.
Consequently,
I make the following
Order
:
1.
The application is dismissed with costs.
2.
The first respondent’s counter-claim for
clearance figures in the amount of R2 616 960.35, plus
interest at the
prescribed rate of 11,25% per annum is upheld.
3.
The applicant is ordered to pay the costs of
the counter-claim.
D.P.
MTHIMUNYE, AJ
Appearances:
For
the Applicant
Adv D
De Kock
Bloemfontein
Society of Advocates
Instructed
by
Spangenberg
Zietsman & Bloem
Bloemfontein
For
the First Respondent:
Adv A
I B Lechwano
Bloemfontein
Society of Advocates
Instructed
by
Rampai
Attorneys
Bloemfontein