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[2019] ZAFSHC 112
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Jacobs v De Klerk and Another (984/2019) [2019] ZAFSHC 112 (4 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 984/2019
In
the matter between:
EMBRENTIA
JACOBS
Plaintiff
and
BAREND
JACOBUS DE KLERK
1st
Defendant
LEJWE
CRUSHERS (PTY)
LTD
2
nd
Defendant
CORAM:
MEINTJES, AJ
JUDGMENT
BY:
MEINTJES,
AJ
DELIVERED
ON:
4
JULY 2019
[1]
This is an application for summary judgment by the plaintiff against
the first defendant for payment of the amount of R1 685
289.00,
interest on the amount of R1685 289.00 a
tempore
morae
,
calculated in accordance with the
Prescribed Rate of Interest Act, 55
of 1975
at the rate of 10% per year from 30 September 2018 to date of
final payment and costs of the suit to be taxed.
[2]
The first defendant opposes the application for summary judgment.
[3]
Plaintiff’s cause of action as set out in the particulars of
claim, is based on: 1) a partly oral, partly written agreement
(the
resignation agreement - “POC1” attached), which was
concluded between the plaintiff, the first defendant, the
second
defendant and the other directors on 12 April 2016, and 2) a written
acknowledgement of debt (“POC2” attached),
also concluded
on 12 April 2016,in terms of which the first defendant acknowledged
his indebtedness to the plaintiff in the amount
of R 1 682 289.00,
and undertook to pay the amount on or before 30 September 2018, as
well as to pay to the plaintiff an amount
of R 14 000.00 per month.
The first payment was to be made on 13 May 2016 and thereafter
monthly until 30 September 2018,
until the final payment of the
outstanding debt.
The
first defendant failed to comply with his obligations in terms of the
said resignation agreement and the acknowledgement of
debt agreement,
in that he failed to make punctual payments of the monthly amounts of
R 14 000.00,and also failed to pay the amount
of R 1 682 289.00 to
plaintiff on or before 30 September 2018.
The
first defendant however made payments to the plaintiff in the total
amount of R 389 000.00 (“POC3” attached).
As
a result, the first defendant is indebted to the plaintiff to the
amount of R1 685 289.00, which amount is calculated as per
the
particulars of claim (p7, par 10).
The
plaintiff also averred in the particulars of claim, that the
resignation agreement and the acknowledgement of debt agreement,
do
not constitute credit agreements as contemplated in section 8 of the
National Credit Act,34 of 2005 (the Act) in that the loan
agreement
concluded between plaintiff and second defendant, is in terms of
section 4(1)(b) of the Act exempted from the provisions
of the Act as
the loan agreement constitutes a large agreement, as described in
section 9(4) of the Act.
Therefore,
by virtue of the provisions of section 4(2)(c) of the Act, the Act is
not applicable to both the resignation agreement
and the
acknowledgement of debt agreement ,as they constitute agreements in
terms of which the first defendant undertook and promised
to satisfy
the second defendant’s obligation to the plaintiff, which
obligation does not arise from any transaction to which
the Act
applies.
The
plaintiff issued summons on 1 March 2019, which was served on first
defendant on 8 March 2019.
The
defendants delivered their notice of intention to defend on 8 April
2019.Whereafter the plaintiff delivered the application
for summary
judgment on 24 April 2019, within 15 days after the delivery of the
notice of intention to defend.
Plaintiff,
in her affidavit in support of the application for summary judgment,
verified the cause of action as set out in the particulars
of claim.
She also stated that according to her, there is no bona fide defence
to the action and that the notice of intention
to defend, has been
delivered solely for the purposes of delay.
3.1 The first defendant,
in his answering affidavit, denied that he is indebted to the
plaintiff for the amount claimed as per the
summons. He also
denied that he does not have a bona fide defence against plaintiff’s
claim or that the notice to defend
was given solely for the purpose
to delay plaintiff’s claim.
First defendant
specifically denied that he agreed to settle the obligations of the
second defendant to the plaintiff by virtue
of the resignation
agreement and the acknowledgment of debt agreement. “
Put
differently, I deny that the resignation agreement and the
acknowledge of debt agreement are credit guarantees as provided for
by the NCA
”
.
(the Act)
The reason for this,
according to first defendant, being that the obligations of the
original loan agreement and those of the resignation
agreement and
the acknowledge of debt agreement differ significantly, so much so
(as set out in the affidavit), that it cannot
be said that the
last-mentioned agreements guarantee the second defendant’s
obligations under the loan agreement. They
being new and
separate rights and obligations “
more
onerous than those of the loan agreement
”…“
the
loan agreement has been novated by the terms and conditions of the
resignation agreement and the acknowledgement of debt agreement
”
they are accordingly not
a credit guarantee of the loan agreement.
Both
agreements therefor credit agreements within the ambit of section 8
of the Act. Plaintiff not a registered credit provider,
the
resignation agreement and the acknowledgement of debt agreement
therefor unlawful credit agreements in terms of section 89(2)(d)
read
with 89(5) of the Act.
[4]
The following seems to be common cause facts:
4.1
The second defendant is, in terms of a loan agreement, concluded with
the plaintiff in February 2015, indebted to the plaintiff
in the
amount of R 1 6 82 289.00;
4.2
This loan agreement is in terms of section 4(1)(b) of the Act,
exempted from the provisions of the Act;
4.3
The plaintiff and the first defendant concluded the resignation
agreement and the acknowledgement of debt agreement on 12 April
2016
on the terms as set out;
4.4
The first defendant failed to make sufficient payments in terms of
the said agreements;
4.5
Plaintiff is not a registered credit provider in terms of the Act.
[5]
The issue to be decided is whether the resignation agreement and the
acknowledgement of debt agreement are credit agreements
as
contemplated in section 8 of the Act.
5.1 In terms of the
resignation agreement and the acknowledgement of debt agreement, the
first defendant clearly agreed and undertook
to pay the said amounts
to the plaintiff. Plaintiff did not advance any money to the
first defendant in terms of the resignation
agreement or the
acknowledgement of debt agreement. That was done to the second
defendant in terms of the loan agreement,
which is exempted from the
Act.
5.2
Relevant to the issue to be determined is section 8(5) of the Act
which provides:
“
An
agreement, irrespective of its form but not including an agreement
contemplated in subsection (2),constitutes a credit guarantee
if, in
terms of that agreement, a person undertakes or promises to satisfy
upon demand any obligation of another consumer in terms
of a credit
facility or a credit transaction to which this Act applies
”
.
To be
read with this, is section 4(2)(c) of the Act which provides:
“
For
greater certainty in applying subsection (1)-(c) this Act applies to
a credit guarantee only to the extent that this Act applies
to a
credit facility or credit transaction in respect of which the credit
guarantee is granted; and
”
.
[6]
In Ratlou v Man Financial Services SA (Pty) Ltd
[2019] ZASCA 49
the
central issue of the appeal was whether a settlement agreement is
governed by the provisions of the Act, when the underlying
contracts
are not governed by the Act?
In
finding that the settlement agreement did not fall within the ambit
of the Act, the court inter alia held as follows in par 19:
“
If
the underlying
causa
did not fall within the parameters of the NCA, then its compromise in
terms of the settlement agreement, cannot logically result
in the
agreement being converted to one that does
”
And
also in par 21 it was decided: “
A
purposive interpretation and not a literal interpretation of s
8(4)(f) of the NCA is required because it is quite clear that the
NCA
was not aimed at settlement agreements. Its application to them
will have devastating effect on the efficacy and the
willingness of
parties to conclude settlement agreements and thereby curtail
litigation
”
.
Section
8(4)(f) of the Act provides that:
“
An
agreement, irrespective of its form but not including an agreement
contemplated I subsection (2), constitutes a credit transaction
if it
is-
(f) any other agreement,
other than a credit facility or credit guarantee, in terms of which
payment of an amount owed by one person
to another is deferred, and
any charge, fee or interest is payable to the credit provider in
respect of-
(i)
the agreement; or
(ii)
the amount that has been deferred
”
.
In
the Ratlou decision (
supra
)
in par 26 it was in no unclear terms decided that:
“
There
can only be one conclusion, that the NCA was not designed to regulate
settlement agreements where the underlying agreements
or cause, would
not have been considered by the Act
”
.
In
Ribeiro v Slip Knot Investments 777 (Pty) Ltd
[2010] ZASCA 174
;
2011
(1) SA 575
(SCA) it was found that the underlying causa remained
extant despite settlement and that the two agreements were
interdependent.
On
p 580 par C-D it was decided:
“…
-
does not detract from the fact that the parties explicitly intended
not to extinguish, but rather to confirm, the obligations
arising
from the initial agreements. The obligations under the loan
agreements and those under the new agreement were thus
interdependent. This can only mean that the agreement was, in
substance, an agreement to guarantee RB Merit’s obligations
under the initial loan agreements-and was therefore a credit
guarantee to which the NCA did not apply
”
.
[7]
In
casu
, the resignation agreement and the acknowledgement of
debt agreement relate to an underlying agreement which is exempted
from the
Act. Therefore, based on the dicta in Ratlou (
supra
)
the resignation agreement and the acknowledgement of debt, do not
constitute credit agreements as contemplated in the Act, but
rather,
based on the dicta in Ribeiro (
supra
), credit guarantees as
contemplated in section 8(5) of the Act. In terms of section
4(2)(c) of the Act, it is however exempted
from the Act, because the
loan agreement is not subjected to the provisions of the Act.
It
is clear that the first defendant was not granted any loan nor was
any credit advanced to him by plaintiff. He was also
not a
party to the loan agreement between plaintiff and second defendant.
His involvement arose when he undertook or promised
to pay the
admitted indebtedness of second defendant. That brings the
obligations of the first defendant within the language
of section
8(5) of the Act. However, section 4(2)(c) of the Act, provides
that the Act applies to a credit guarantee only
to the extent that
this Act applies to a credit facility or credit transaction.
The loan agreement here, not falling within
the ambit of the
provisions of the Act. The resignation agreement and the
acknowledgement of debt agreement thus falling
outside of the scope
of the Act, and plaintiff, not a credit provider in terms of section
40 of the Act, not obliged to register
as a credit provider (see:
Shaw v Mcintosh 2019(1) SA 398 (SCA) and De Bruyn v Karsten
2019 (1)
SA 403
(SCA).
[8]
It is therefore found that the application for summary judgment is
within the provisions of Rule 32(2), and that the first defendant
does not have a
bona
fide
defence against the plaintiff’s claim and that the plaintiff is
therefore entitled to summary judgment as prayed for.
[9]
Subsequently I make the following order:
Summary
judgment is granted against the first defendant for:
9.1
Payment of the amount of R 1 685 289.00.
9.2
Payment of interest on the amount of R 1 685 289.00 a
tempore
morae
,
calculated in accordance with the Prescribed Rate of Interest Act,55
of 1975 at the rate of 10% per year from 30 September 2018
to date of
final payment.
9.3
Payment of the costs of the suit to be taxed.
_________________
S.G.MEINTJES, AJ
On
behalf of plaintiff: Adv. C.D Pienaar
Instructed
by: Du Rand & Louw
BLOEMFONTEIN
On
behalf of defendants: Adv. PJJ Zietsman
Instructed
by: Kramer Weihmann & Joubert Inc
BLOEMFONTEIN