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[2022] ZAGPJHC 665
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Rhenus Logistics (PTY) Ltd v Richard (19105/2021) [2022] ZAGPJHC 665 (8 September 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 19105/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
RHENUS
LOGISTICS (PTY)
LTD
Plaintiff
And
REED
RICHARD
Defendant
JUDGMENT
MAKUME,
J:
[1]
In this matter the Plaintiff issued summons against the Defendant
claiming payment
of the sum of R1 773 825.12 arising out of
an agreement to render services by the Plaintiff to a company now in
business
rescue called Incledon. The Defendant signed surely binding
himself to the Plaintiff in respect of all amounts owing by Incledon
to the Plaintiff.
[2]
The Defendant pleaded and now the Plaintiff has filed an exception
against the Defendant’s
plea citing that it is vague.
[3]
On the 6th July 2021 the Plaintiff filed a notice to remove the cause
of complaint
in terms of Rule 23(1). The Defendant did not comply
with that notice.
[4]
There are two grounds of exception taken against the Defendant’s
plea. The first
ground is that the plea is vague and embarrassing
because having admitted contents of a written agreement concluded
between the
Plaintiff and Incledon (In business rescue) the Defendant
in paragraph 10 baldly denies the allegations made by the Plaintiff
in
respect of invoices for services rendered he gives no explanation
for his bold denial. This is despite the Defendant’s admission
that the invoice falls within the period during which he admitted
that the services were rendered. The denial is accordingly
contradictory
and vague.
[5]
The second ground of exception is to be found in the Defendant’s
plea in his
paragraph 11. The plea is in response to what the
Plaintiff alleges in its paragraphs 16 and 17 wherein mention is made
that the
Defendant bound himself in writing in his personal capacity
as co-principal debtor with Incledon for the due and punctual payment
of sums of money due to the Plaintiff.
[6]
In his paragraph 11 the Defendant admits that he signed the written
agreement but
alleges that he deleted the words “as surety”
in the written agreement. In his view the Defendant pleads that by
deleting
the word “as surety” that absolves him from
being bound as surety including but not limited to being bound as
co-principal
debtor.
[7]
The Plaintiff’s claim is not based on surety but on the
principle of co-principal
debtorship which is a distinct and separate
contract from that of suretyship (See Jans v Nedbank Bank Ltd
2003
(2) ALL SA 11
(SCA) at paragraph 9).
[8]
The resultant effect of the Defendant’s plea is that the
Plaintiff is not clear
as to what the Defendant’s defence is
and thus renders it vague and embarrassing. The Plaintiff is not
placed in a position
to replicate and meet the Defendant’s
version. In the result I have come to the conclusion that the
Defendant’s plea
is vague and embarrassing in the respects set
out and accordingly excipiable.
ORDER:
1.
The Plaintiff ‘s exception is upheld.
2.
The Defendant’s defence is struck out.
3.
The Defendant is ordered to pay the taxed party and party costs of
the Plaintiff.
Dated
at Johannesburg on this day of September 2022
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Appearances:
DATE
OF HEARING
: 24 AUGUST 2022
DATE
OF JUDGMENT
: 08 SEPTEMBER 2022
FOR
PPLAINTIFF
: ADV MANNING
INSTRUCTED
BY
: MESSRS
FOR
DEFENDANT
: IN PERSON