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[2021] ZAGPJHC 422
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Consolidated Steel Industries (Pty) Limited t/a Global Roofing Solutions v Carrack In re: Consolidated Steel Industries (Pty) Limited t/a Global Roofing Solutions v Sonstep Trading (Pty) Limited and Another (A3031/2020) [2021] ZAGPJHC 422 (30 August 2021)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: A3031/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
30
August 2021
In
the matter between:
CONSOLIDATED
STEEL INDUSTRIES (PTY) LIMITED
Appellant
t/a
GLOBAL ROOFING SOLUTIONS
(Reg
No: [....]
and
CARRACK,
STEPHEN
Respondent
In
re:
CONSOLIDATED
STEEL INDUSTRIES (PTY) LIMITED
Plaintiff
t/a
GLOBAL ROOFING SOLUTIONS
(Reg
No: [....]
and
SONSTEP
TRADING (PTY) LIMITED (IN LIQUIDATION)
First Defendant
CARRACK,
STEPHEN
Second Defendant
JUDGMENT
MATTHYSEN
AJ:
Introduction
[1]
The
Plaintiff sued the Defendants for goods sold and delivered pursuant
to the grant of an incidental credit facility arising from
a written
agreement between the parties, which includes a suretyship. First
Defendant is in liquidation and the Plaintiff proceeded
only against
the Second Defendant (the Respondent) as surety.
[2]
The
matter reached the stage of summary judgment and the learned
Magistrate granted judgment for the capital and costs in accordance
with the agreement, but granted interest in his own discretion.
[3]
This
latter order as to interest is the subject of this appeal. The appeal
is not opposed.
[4]
The
Magistrate confirmed that no facts were in dispute, that there was no
opposition and yet he did not grant judgment as prayed
for in respect
of the interest component of the claim. In particular, the Magistrate
ordered (i) interest at the mora rate of 10.25%
and (ii) interest to
run from date of service of summons and not
a
tempore morae
.
[5]
It
is clear from the agreement entered into between the parties that
interest would be calculated at the rate of 3% above prime.
Clause
6.7 of the agreement states as follows:
‘
The
Company reserves the right to levy interest on all overdue amounts at
3% above the then current commercial prime overdraft rate
as quoted
by First National Bank interest.’
[6]
Counsel
for the Appellant argued that the Magistrate elected to ignore the
agreed interest rate and instead granted interest at
the prescribed
rate. He goes further and states that the prescribed rate for mora
interest is regulated by the
Prescribed Rate of Interest Act, 55 of
1975
.
Section 1
of this Act specifically provides that the prescribed
rate only applies in the absence of agreement or other methods which
would
set the interest rate.
[7]
In
my view the learned Magistrate was wrong in not giving effect to the
agreement and granting interest at the agreed amount
.
[8]
The
learned Magistrate only granted interest at the rate of 10.25%.
[9]
In
paragraph 4 of the heads of argument counsel for the Appellant stated
that the Appellant lost an amount of R3 240.00.
Discussion
[10]
It is clear that
the learned Magistrate erred in not granting the interest rate as
agreed between the parties.
[11]
For this simple
reason the appeal should be upheld.
Costs
of appeal
[12]
Counsel for the
Appellant in both his heads of argument as well as the notice of
appeal does not seek any cost order.
[13]
I am of the view
that the Respondent should not be punished by a cost order in this
appeal.
[14]
The costs of this
appeal would clearly amount to at least R50 000.00. The amount
of R3 240.00 does not justify costs on
appeal.
[15]
I am therefore of
the view that the appeal should be upheld but that the costs should
be borne by the Appellant.
order
[16]
I thus make the
following order:
1.1.
The appeal succeeds;
1.2.
The interest order is deleted and replaced
with the following:
‘
Interest
is payable on such amount calculated at 3% above the prime overdraft
rate of First National Bank Limited, upon the reducing
capital
balance, from 1 June 2019 to date of final payment, both days
inclusive
;’
MATTHYSEN
AJ
HIGH
COURT ACTING JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur,
FISHER
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
19
July 2021.
Judgment
Delivered:
August
2021.
APPEARANCES:
For
the Appellant:
Adv C D Roux
Instructed
by:
RC
Christie incorporated
For
the Respondent:
No appearance