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[2021] ZAGPPHC 268
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JV Gold Bridge (Pty) Ltd and Others v Kamonyaka Property Developments (Pty0 Ltd (35484/2020) [2021] ZAGPPHC 268 (5 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 35484/2020
REPORTABLE:
NO
OF
INTERST TO OTHERS JUDGES:NO
REVISED
DATE:5/5/21
In
the matter between:
JV
GOLD BRIDGE (PTY) LTD
1
ST
EXCIPIENT/ DEFENDANT
VISSER
CORNELIUS DU PLESSIS
2
ND
EXCIPIENT/ DEFENDANT
JACOBUS
PETRUS GOOSEN
3
RD
EXCIPIENT/ DEFENDANT
and
KAMONYAKA
PROPERTY
DEVELOPMENTS
(PTY) LTD
RESPONDENT/ PLAINTIFF
JUDGMENT
On
Exception
FRANCIS-SUBBIAH
AJ
INTRODUCTION
[1]
This is an opposed motion were the excipients being the defendants in
the main action raise an exception to the plaintiff’s
(respondent’s) particulars of claim in terms of Rule 23(1) of
the Uniform Rules of Court. In particular they raise a lack of
cause of action and/ or that the entire claim has prescribed.
[2]
The excipients having noted the exception took no further steps to
have
the matter set down timeously for hearing within fifteen (15
days). The respondent took it upon itself to have the matter set down
but complained of the excipients’ failure to lodge an
application for condonation because the exception had effectively
lapsed. The respondent, in taking the step to set down the exception
for hearing, has homogeneously conceded, accepted or re-instated
the
exception. On this premise the delay for setting down the exception
is condoned and the matter proceeds without further delay
to be
argued on the merits.
[3]
The parties henceforth will be referred to as in the main action as
plaintiff
and defendants.
[4]
The plaintiff argued that raising prescription by way of exception is
an incorrect procedure and in action proceedings should have been
raised by way of a plea or a special plea. Conversely the defendants
submit that a litigant cannot be denied an opportunity to raise an
exception if no evidence needs to be lead, which ultimately
will
expedite the proceedings and will result in less costs being incurred
as no evidence of witnesses will need to be tendered.
[5]
In
Sanan
v Eskom Holdings Limited
,
[1]
the court stated that it is the nature of the defence (merits) which
is more important than the procedure adopted, be it raised
by special
plea or exception.
[6]
It is common cause between the parties that
the material, express and relevant terms of the written loan
agreement are that:
6.1
The plaintiff would lend and advance the amount R 4 million, and any
such further
amounts as agreed in future;
6.2
The interest on the loan amount, calculated at a monthly rate of
1.67%, will
be paid by the first defendant to the plaintiff on the
first day of every month; and
6.3
The loan amount, or any stipulated amount, would become payable on 30
days’
written notice by the plaintiff to the first defendant.
[7]
In this regard the defendants raise five
(5) grounds of exception to the clauses of the agreement as follows:
7.1
The loan agreement is silent on the due date for repayment of any of
the loan
amounts advanced to the first defendant. The only indication
regarding the due date for repayment of the loan is it “would
become payable on 30 days’ written notice by the Plaintiff to
the First Defendant.”
7.2
When a loan is “payable on demand” it entails that no
specific demand
for repayment is necessary and the debt becomes
repayable as soon as it is incurred and not only after demand has
been given by
the creditor;
7.3
Where an agreement is silent on a due date, the debt is regarded
as
due and payable immediately on conclusion of the contract,
alternatively when the loan advance is made
;
7.4
In the absence of a due date for payment and in the event that the
contract becomes payable on demand (in contrast to due and payable),
the cause of action arises on the conclusion of the contract,
alternatively on the date that each loan amount was advanced and not
when demand for payment was made;
7.5
As the loan
agreement was entered into on 5 September 2014, alternatively the
last loan amount was advanced on 22 October 2015,
the plaintiff’s
entire claim has become prescribed in terms of section 11 of
Prescription Act
[2]
and the
exception must therefore be upheld.
[8]
In
Trinity
Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd
,
[3]
it was held that a loan without stipulation as to a time for
repayment was repayable on demand unless the parties agree otherwise.
When no due date was specified, the debt was generally due
immediately on conclusion of the contract. However, the parties may
intend that the creditor be entitled to determine the date for
performance and that the debt would become due only when demand
had
been made as agreed. Where there was such a
clear
and unequivocal intention
,
(own emphasis) the demand would be a condition precedent to claim
ability and a necessary part of the creditor’s cause of
action
and prescription would begin to run only from demand.
[9]
The defendants rely upon
Trinity
on the basis that the loan
without stipulation as to a time for repayment was repayable on the
date that each loan was advanced
and prescription ran from that date.
The plaintiff argues that the facts in
Trinity
differ from the
current matter on the basis that it did not have such a clause as
“would become payable on 30 days’
written notice by the
Plaintiff to the First Defendant.” That demand is made as
agreed.
[10]
The
plaintiff is of the view that a debt can only be said to be claimable
immediately if a creditor has a right to institute action
for its
recovery. In order to be able to institute an action for the
recovery of a debt, a creditor must have a complete
cause of action
in respect of it, as was held in
Anglorand
Securities Limited v Mudau and Another
.
[4]
[11]
Hence on 11 March 2020, the plaintiff elected to terminate the loan
agreement by virtue
of the provisions of clause 6.1 of the loan
agreement. The plaintiff notified the first, second and third
defendants in writing
that it claimed repayment of the total
outstanding balance of the loan amount within 30-days from date of
dispatch of the written
notices.
[12]
The
plaintiff further adds that its claim did not prescribe because
section 15(1) of the Prescription Act provides that the running
of
prescription is also interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.
[5]
[13]
The last
payment made by the first defendant was less than three years prior
to the issuing of the summons and the last interest
payment received
from the first defendant was during March 2019. In terms of section
14(2) of the Prescription Act, if the running
of prescription is
interrupted as contemplated in section 14(1), prescription shall
commence to run afresh from the day of which
the interruption takes
place.
[6]
In addition to the
aforementioned interest payments, the second defendant repaid an
amount of R2,000,000.00 in respect of the capital
loan amount to the
plaintiff on 29 June 2019. The third defendant unconditionally
acknowledged in writing that the first defendant
is indebted to the
plaintiff in the total sum of R9,328,864.45 on 25 February 2020.
[14]
The matter
of
Road
Accident Fund v Mothupi
[7]
held that an acknowledgement of liability for the purpose of section
14 of the Prescription Act is a matter of fact and not a matter
of
law.
[15]
Further the
test on exception is for the excipient to satisfy the court that the
conclusion of law for which the plaintiff contends
cannot be
supported upon every interpretation that can be put upon the facts.
In
Francis
v Sharp and Others
[8]
it was held that an exception may be taken only when the vagueness
and embarrassment strike at the root of the cause of action
pleaded,
i.e. if the other party will be seriously prejudiced if the
allegations remain. No such submissions have been made that
the
defendants will be prejudiced. On the contrary, without the leading
of evidence, the upholding of the exception will close
the door to
the plaintiff without being given the opportunity to lead evidence
and this will result in serious prejudice for the
plaintiff.
[16]
In
Screening
& Earthworks (Pty) Ltd and Another v Capital Outsourcing Group
(Pty) Ltd:
In
re Capital Outsourcing Group (Pty) Ltd v Screening & Earthworks
(Pty) Ltd & Another
[9]
it was held that the exception rule cannot be used to attack the
vagueness of a contract relied upon by a party, an exception is
only
concerned with pleadings. Hence the intention in a contract must be
pleaded as a special plea and cannot be raised in an exception.
When
a debt is due in a contract it is determined with reference to the
intention of the parties. Lack of a cause of action alternatively
prescription must be pleaded. Evidence supporting the contentions can
be tested and will be examined.
[17]
For the
defendants to succeed on striking out the plaintiff’s claim
they must show that the plaintiff’s claim is bad
in law.
Similarly in
Belet
Industries CC t/a Belet Cellular v MTN Service Provider (Pty) Ltd
[10]
it was held that the excipient must show that the claim does not bear
the meaning contended for by the plaintiff. In this regard
the
plaintiff does rely on the agreements and conducts of the defendants
to have its claims settled. Therefore the court may allow
the
question raised by an exception to stand over for the decision at the
trial especially if it appears that the question may
be interwoven
with the evidence that will be led at the trial. In
South
African National Parks v Ras
[11]
it was held that unless the excipient can satisfy the court that
there is a real point of law or a real embarrassment, the exception
should be dismissed.
[18]
The submissions by both parties indicate that a ‘clear and
unequivocal intention’
of the parties at the time of concluding
the agreement is in dispute. A court may interpret provisions
of an agreement but
parties to an agreement do not interpret or
speculate on their intended meaning but by the leading of evidence
can reveal their
intention at the time when the particular agreement
was entered into.
[19]
As a result the exception on the grounds advanced by the defendants
cannot succeed.
ORDER
[20]
In the event the following order is made:
20.1
The late filing of the exception is
condoned.
20.2
Raising of prescription by exception in the
current circumstances is not an appropriate process and it should be
raised by special
plea.
20.3
The exception is dismissed with costs.
R FRANCIS-SUBBIAH
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Delivered: This
judgment was prepared and authored by the Judges whose names is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 05 May 2021.
APPEARANCES
Counsel
for the Excipients:
ADV M COETZEE
Counsel
for the Defendant:
ADV J A DU PLESSIS
Date
of
Hearing: 21
APRIL 2021
Date
of
Judgment:
05 MAY 2021
[1]
2010 (6) SA 638
(GSJ) at paras 20 – 21.
[2]
68 of 1969.
[3]
2018 (1) SA 94 (CC).
[4]
[2011] ZASCA 76.
[5]
68
of 1969
[6]
68
of 1969
[7]
2000 (4) SA 38
(SCA) at para 37.
[8]
2004 (3) SA 230
(C) at 240.
[9]
[2008] 1 All SA 611 (B).
[10]
[2014] ZASCA 181.
[11]
2002 (2) SA 537
(C) at 541.