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[2019] ZAKZDHC 38
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Jeany Industrial Holdings (Pty) Ltd and Others v Zungu-Elgin Engineering (Pty) Ltd (D4936/18) [2019] ZAKZDHC 38; 2020 (2) SA 504 (KZD) (30 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: D4936/18
In the matter between:
JEAN
Y
INDUSTRIAL HOLDINGS (PT
Y) L
TD
First Plaintiff/Applicant
(
Re
gistration
Number 2002/018137/074)
IAN
LAVERNE
DONJEANY
Second Plaintiff/ Applicant
LEE
SPENCER
DONJEANY
Third Plaintiff/ Applicant
And
ZUNG
U
-ELGIN ENGINEER
I
NG
(P
T
Y
)
L TD
(
Reg
istration
Number 2002/017207/07)
Defendant /
Respondent
ORDER
1. Summary
judgment is granted against the Defendant / Respondent for
payment of
the sum of R250 000.
2. Interest
on the said sum at the prescribed rate
a tempore
morae to date
of final payment.
3. Costs of suit
on the scale as between attorney and client, such costs to
include
that of senior counsel where so employed.
JUDGMENT
Chetty
J:
[1]
The plaintiffs instituted an action against the defendant
for the amount of R250 000.00 based on its right
of
recourse as a surety against the principal debtor in circumstances
where the plaintiffs made payment to a creditor (Hollard
Insurance)
to whom the defendant was indebted. As will appear from what follows,
the plaintiff’s action was defended, resulting
in an
application for summary judgment which was set down on the opposed
roll. The determination of that application called for
an analysis of
what are essentially two legal questions. There were no disputes of
fact on the papers which presented themselves.
[2]
Central to understanding the basis of the plaintiff’s
claim against the defendant is a background to the matter. The
defendant
operates its business in the engineering sector, in which
it manufactures heavy duty parts and equipment for the sugar and
petro
chemical industries. The second and third plaintiffs are the
erstwhile directors of the defendant, which was formerly called Elgin
Engineering (Pty) Ltd. The second plaintiff resigned from the
defendant on 30 November 2016, with the third plaintiff resigning
on
19 April 2005. This appears from a company search report.
According to the defendant, at the time when both the
second and
third plaintiffs were directors of Elgin an agreement was concluded
in September 2013 pursuant to the defendant having
been awarded a
large contract to carry out the manufacture of a tank at Saldhana in
the Western Cape. The agreement between
the defendant and
Hollard Insurance contained the provision of a performance guarantee
bond by Hollard to Sunrise Energy (Pty)
Ltd, the entity which
contracted with Elgin to carry out the fabrication and delivery of
certain tanks for the storage of liquid
petroleum gas.
[3]
It is not disputed that Hollard forwarded the performance
guarantee to Sunrise in October 2013. A material term of the
agreement
is that
Hollard
would, in the event of a breach of the defendant’s obligation
to Sunrise, upon written demand by Sunrise, would
pay to
Sunrise an amount not exceeding
R33 951 466
,
representing 25 per cent of the contract price. In February 2015
Sunrise furnished a written demand to Hollard pursuant to the
terms
of the agreement for a performance guarantee for the sum referred to
above. Hollard honored the guarantee and paid
the amount to
Sunrise over a period from 17 to 31 March 2015 in four payments. In
terms of a written reciprocal indemnity and suretyship
agreement
concluded on 20 September 2013 between Hollard as the insurer and
seven ‘principal’ companies or ‘signatories’
as they are referred to in the particulars of claim, including Elgin,
the signatories undertook to indemnify Hollard from any claims
which
Hollard may sustain by reason of executing any guarantees on
behalf of one of the signatories to the agreement.
As a
consequence of Hollard’s payment of R33 951 466 to Sunrise,
Elgin (in terms of the provisions of the indemnity and suretyship
agreement as set out above) became indebted to Hollard in the said
amount.
[4]
A further
term of the agreement was that each of the signatories including the
plaintiff and the first respondent
undertook
to indemnify Hollard against all cla
i
ms
of whatever nature which it (Hollard) sustained as a consequence of
having executed any guarantees on behalf of any of the signatories.
Each of the signatories agreed to bind themselves as surety and
co-principal debtor jointly and severally with each other
for any
guarantee executed by Hollard in respect of any debt owed by any of
the signatories.
Although
this term of the contract is expressed in a rather convoluted
fashion, as I understood Mr
King
SC
who
appeared for the plaintiffs, where Hollard paid Sunrise, as in this
instance, as a result of a breach committed by any of the
signatories, each of the other signatories became liable to Hollard
as a surety for the other principals’ breach. Mr
Laher
,
who appeared for the defendant did not take issue with that
interpretation of the indemnity and surety agreement signed
by those
representing Elgin. That being the case, the first plaintiff (Jeany)
bound itself as surety and co-principal debtor with
Elgin for all
debts owed by Elgin to Hollard. On the same date as the indemnity and
suretyship agreement was entered into, the
second and third
plaintiffs bound themselves as sureties and co-principal debtors
in respect of any debt that
Elgin owed to Hollard under the
indemnity agreement of 20 September 2013.
[5]
Following
the discharge of its obligations in terms of the performance
guarantee and its payment of R33 951 466 by Hollard to Sunrise,
the
former instituted proceedings against the plaintiffs for payment of
the said amount based on the indemnity and suretyship agreements
which had been entered into. Judgment was taken on 24 June 2016 by
Hollard against the plaintiffs for the said amount together
with
interest. On 7 December 2016 a settlement agreement was concluded
between the plaintiffs and Hollard in terms of which the
parties
entered into a compromise agreement to make payment of the amount of
R33 951 466 to Hollard payable in terms of a schedule
agreed to,
together with an additional amount relating to the recovery of third
party claims. In the discharge of its obligations
under the
compromise agreement and as surety for the defendant’s
indebtedness to Hollard, the plaintiffs made payment in
three
installments to Hollard between October 2017 and April 2018 totaling
R250 000. It is this amount that the plaintiffs now
claim from the
defendant in summary judgment. As stated at the outset, the
plaintiffs’ claim arises from a surety’s
right of
recourse against the principal debtor where the surety has made
payment to a creditor to whom the debtor was indebted.
[6]
The defendant has filed a detailed affidavit setting out its
defences.
The matter was fully argued on the opposed roll. The
defendant has fully set out what it considers to be a bona fide
defence
and contends on that basis that summary judgment should be
refused. I do not intend restating the authorities as to what is
required
of a litigant to ward off an application for summary
judgment save that counsel for both parties were in agreement that
the issues
raised in this application turn on points of law. If the
application were refused, the arguments presented to me would be no
different
to that which would be argued at a trial – which,
seeing that there are no disputes of fact, would more likely take the
form
of an opposed motion. There was no further information that was
relevant to the determination of the dispute between
the
parties as the pleadings to date fully set out the respective
positions of both parties. The defendant’s opposition to
summary judgment is premised on the following grounds: that when the
defendant went into business rescue, that constituted a compromise
of
all of its pre-business rescue debts and that debt which the
defendant owed Hollard constituted one of them. It further contends
that no cause of action lies against the defendant and what it refers
to a “additional considerations” suggesting that
the
plaintiffs claim (if they had one) against the defendant, had in any
event prescribed.
[7]
In the matter of
Oos-Randse Bantoesake Administrasieraad v
Santam Versekeringsmaatskappy Bpk en Andere (2)
[1]
Colman J had the following to say in relation to the obligations of a
defendant in a summary judgment application in demonstrating
that he
has a bona fide defence:
‘What is required of
him is not a great deal. But he must lay enough before the Court to
persuade it that he has the genuine
desire and intention of adducing,
at the trial, evidence of facts which, if proved, would constitute a
valid defence. In order
to achieve that degree of persuasiveness the
defendant must do more than assert his intention to establish his
defence by evidence
at the trial. He must place on affidavit enough
of his evidence to convince the Court that the necessary testimony is
available
to him, and that, if it is accepted, it will
constitute a defence. That applies even if the
onus
of
negativing the defence will ultimately rest upon the plaintiff as,
for example, in a case where the plaintiff is claiming enforcement
of
a contract, and the defence is a denial that such a contract was
concluded.’
[8]
The court has an overriding discretion
whether on the facts averred by the plaintiff, it should grant
summary judgment or on the
basis of the defence raised by the
defendant, it should refuse it. The discretion is unfettered and if
the court has any
doubt as to whether the plaintiff’s
case is unanswerable at trial, such doubt must result in the
application being refused.
The requirement of whether the defence
raised by the defendant is bona fide has been expressed differently -
as to whether on the
facts before it, a court is able to conclude
that the defence raised is bogus or is bad in law. It is only
when there is
no doubt that the plaintiff has an unanswerable case
that it should be granted. The defendant has set out fully the facts
on which
its defences are based. It cannot be faulted in that regard.
The pivotal issue is whether the facts alleged by the defendant
constitute
a good defence in law and whether that defence appears to
be bona fide.
[9] The
defendant does not take issue with the factual matrix leading to
the
conclusion of the suretyship agreement and indemnity signed by the
plaintiffs, as set out above. It denies that the plaintiffs
have a
claim against it following the payment of monies by them to
Hollard. The defendant placed before the court facts (which
were not
denied by the plaintiff) that on 11 March 2015 at the behest of the
Industrial Development Corporation (‘the IDC’)
and in
terms of 131 of the Companies Act
[2]
(the ‘new Companies Act’) the defendant was placed under
business rescue. Pursuant to this, a business
rescue
practitioner was appointed and gave notice to all affected persons
with a claim against the defendant to file their claims
with the
practitioner. It is common cause that the plaintiffs did not lodge a
claim nor did they participate in the rescue plan
that eventuated.
The defendant submits that the plaintiffs had knowledge of the
business rescue proceedings and acted mala fide
in not participating
in the plan. Essentially, it is contended that the plaintiffs avoided
participating so as to hold out for
a better deal once the plan has
been discharged. While other creditors, including Hollard –
which was classified as a ‘contingent
creditor’ –
lodged claims to the value of R124 million, they would have received
approximately R13.8 million on the
basis that the amount available
for payment of claims was approximately 15 cents to the Rand.
[10]
Counsel for the defendant contends that what the plaintiffs’
are now seeking to obtain
is a 100 per cent satisfaction of a claim
(if proven) whereas other creditors with claims at the time had
to be satisfied
with significantly less from the business rescue
practitioner. It was submitted that the business rescue plan adopted
is binding
on every creditor and holder of security in terms of the
so-called ‘cramdown’ principle which binds even
disgruntled
creditors.
[3]
Having regard to the purposes of business rescue as set out in
Oakdene Square Properties (Pty) Ltd & others v Farm
Bothasfontein (Kyalami) (Pty) & others
[4]
it was submitted that to allow a claim by a surety in the present
circumstances would undermine the purposes of the Act.
It
was contended that the business rescue proceedings had the effect of
distinguishing between the ‘old Elgin’
(pre business
rescue) and the ‘new-Elgin’ (post business rescue. To
allow a claim by the plaintiffs at this stage would
be to saddle the
new company with the debts of the old.
[11]
The defendants placed much emphasis on the provisions of s
154(2) of the new Companies Act which reads:
‘Discharge of debts
and claims
(1)
A business rescue plan may provide that, if it is implemented
in accordance with its terms and conditions, a creditor who has
acceded
to the discharge of the whole or part of a debt owing to that
creditor will lose the right to enforce the relevant debt or part
of
it.
(2)
If a business rescue plan has been approved and implemented in
accordance with this Chapter, a creditor is not entitled to enforce
any debt owed by the company immediately before the beginning of the
business rescue process, except to the extent provided for
in the
business rescue plan.’
[12]
The defendant contends that the claim of the plaintiffs, based on a
suretyship agreement,
is analogous to the recovery of a debt, and the
considerations whether such a debt has prescribed under the
Prescription Act
[5]
must apply. The plaintiffs’ contend that their right of
recourse against Elgin only arose at the time when they made payment
to Hollard. If that is the case, then they would not have had
a claim at the time of the business rescue proceedings
and were unable to participate as a claimant in that process. It was
submitted that the defendant’s debt to the plaintiffs
was owed
prior to the commencement of business rescue proceedings and that the
plaintiffs claim would have qualified as that of
a ‘contingent
creditor’. The defendant relies on the decision of
Eravin
Construction CC v Bekker NO & others
[6]
where the issue was whether the payment of monies by a company under
liquidation to the appellant, Eravin, is recoverable at the
instance
of the liquidators as a void disposition in terms of s 341(2) of the
old Companies Act,
[7]
or whether recovery is precluded under the new Companies Act on the
basis that it was a pre-business rescue debt which may not
be
enforced. Landman J declared the payment to be void and ordered the
repayment of the money. The court a quo found that the ‘claim
arises when the cause of action is complete’ and that the debt
was not a pre- business rescue debt and its recovery was enforceable.
The Supreme Court of Appeal said the following:
‘[18]
Despite his own warning of the dangers of importing the concepts in
the Prescription Act into the different context
of the old and
new Companies Acts, Landman J did precisely that. In so doing, he
ignored a fundamental difference between the two.
[19]
The Prescription Act is concerned with fixing a time when a
debt falls due – when it may be claimed – because it has
determined that to be the point at which prescription starts to run.
That point is only reached when the creditor knows “the
identity of the debtor and of the facts from which the debt arises’.
[20]
Section 341(2) of the old Act and s 154(2) of the new Act are
different. They are not concerned with when debts are due and can be
claimed, but with when they are owed. On this account, the
prescription analogy is not apposite and, as was demonstrated in this
case, is apt to mislead.
[21]
The question to be answered in this case is thus when the debt
was owed. That must be answered in the first instance with reference
to s 341(2) of the old Act. It states expressly that a disposition in
the terms contemplated by it “shall be void”.
The
recipient has no right, on this account, to retain it. Consequently,
it owes a debt to the body which made the prohibited disposition,
and
that debt is owed as soon as the disposition was received.
[22]
Section 154(2) of the new Act is as clear: if a debt was owed
by a company “before the beginning of the business rescue
process”
– before, in other words – the filing of
the resolution when a company places itself under business rescue –
then the creditor “is not entitled to enforce” that
debt.’ (Footnotes omitted)
[13]
Counsel for the defendant submitted that irrespective of whether
the
plaintiffs were given notice of the business rescue proceedings and
alerted to their right to lodge a claim with the business
rescue
practitioner, the moratorium imposed by s 154 applies to all
creditors and prevents them from enforcing pre-business
rescue debts.
It further contends that the plaintiffs claim arose in February 2015.
I can only assume that this relates to the
date when Sunrise
delivered its demand to Hollard, which provided a performance
guarantee for Elgin. As the summons was only
issued in
May 2018, the claim, it is contended, has prescribed.
[14]
The crux of the matter is when the plaintiffs claim arose and whether
the institution of the action in May 2018 is precluded by virtue of
the defendant having been placed under business rescue on 11
March
2015. The additional consideration which arises is whether the
plaintiffs claim can be said to have prescribed.
[15]
The first of the defences raised is that business rescue proceedings
had the effect of discharging Elgin from its obligations under the
performance guarantee and subsequent indemnity agreement. As
a
consequence, the defendant contends that its obligations to the
plaintiffs’, as sureties, was also discharged. In
any event,
the defendant further contends that the plaintiffs failed to lodge
any claims under business rescue, which are now precluded
by the
moratorium imposed under s 152 (4). Mr
King
contended that this defence has
effectively been rejected by the Supreme Court of
Appeal in
New Port Finance Co (Pty) Ltd & another v Nedbank
Ltd.
[8]
In
New Port
the bank lent money to a company on the strength
of two sureties. The company defaulted and the bank obtained judgment
against the
company. The company subsequently went into business
rescue resulting in the bank’s claim being compromised. The
bank however,
on the strength of the suretyship agreement, pursued
the sureties who were unable to pay. They applied for an interdict
to
prevent the bank for pursuing its claim, which application was
dismissed by the High Court. In the SCA they argued that the business
rescue proceedings altered the sureties’ obligations as a
result of the compromise being reached. The SCA dismissed this
argument, which is instructive in the matter before me. The Court
said the following:
[‘8]
….At the heart of the submissions on behalf of Mr Mostert and
New Port was the proposition that the successful
outcome of the
business rescue proceedings would be that the sureties would have
been relieved of any indebtedness to Nedbank over
and above the
payment of the amounts already received by Nedbank under those two
plans. For various reasons that would not have
been the case.
[9]
The first reason is that Nedbank had obtained judgments that served
to fix the liability of the
sureties. There were no grounds for
rescinding those judgments nor any attempts to do so and they had
become final, with no avenue
open for them to be challenged on
appeal. Even if it is accepted that they did not novate the claims
under the deeds of suretyship,
but merely strengthened those claims
and replaced the right of action on the deeds of suretyship by a
right to execute on the judgment,
the fact remained that the
liability of the sureties was thereby established. If any payment
were made by the principal debtor
thereafter that would enure
to the benefit of the sureties, but that would follow from the fact
that the judgment established
joint and several liability so that, in
the time-honoured expression, if the one paid the others would be
absolved. But we were
referred to no authority and I have discovered
none, in which it has been held that a compromise of the principal
debtor's liability
under the judgment, whether as a result of
business rescue or otherwise, would accrue to the advantage of the
surety after judgment
had been taken against them. There can be no
question of the surety's rights or interests being prejudiced
thereby, because the
extent of the surety's liability for the debt in
question has been fixed and determined. How the creditor thereafter
sets about
executing the judgment against the principal debtor does
not affect either the nature or the extent of the surety's
liability.’
(Footnotes omitted)
[16]
Counsel for the plaintiffs submitted that the present case is very
similar to that in
New Port
in that apart from Hollard
obtaining a judgment against the sureties (the present plaintiffs’),
the deed of suretyship in
clauses 3 to 6 specifically cater for the
same situation which the bank in
New Port
found itself. The
Court said the following in para 10:
‘The second reason
is that the terms of the deeds of suretyship in this case, as is
frequently the situation, had been drafted
so as to cater for this
very eventuality. Clauses five, six and seven entitled the bank to
pursue the sureties notwithstanding
their dealings with the principal
debtor and the grant of any extension of time, or any compromise in
relation to the scope and
extent of the principal debtor’s
indebtedness. Any default on the part of the principal debtor
entitled the bank to sue the
sureties. The benefit of excussion was
waived. I will not lengthen this judgment by quoting the clauses.
They were relatively standard
clauses to be found in most commercial
deeds of suretyship’.
[17]
The decision in
New Port
, to the effect that business rescue
proceedings and the moratorium does not have the effect of
discharging the obligations of a
surety has been followed in
Nedbank
Ltd v Zevoli 208 (Pty) Ltd& others.
[9]
The court referred to
Investec Bank Limited v Bruyns
[10]
in which the moratorium against legal proceedings for the enforcement
of debts in terms of s 133(1) of the new Companies Act in
favour of a
company that is undergoing business rescue proceedings was held to be
a defence in personam. The section, it was held,
does not protect a
surety in respect of the debt of a company which is subject to
business rescue proceedings in terms of the Act.
The Court in
Zevoli
noted in para 28 that:
‘Implicit in the
decided authorities is that the statutory moratorium in terms of
s
133(1)
of the
Companies Act of 2008
, is only intended to benefit the
company which has been placed under business rescue proceedings. The
immunity in question is therefore
a personal privilege or benefit of
the company in question. The sureties cannot claim such benefit since
they are sued on the basis
of their suretyships with the plaintiff.
In the
Investec
case supra para 23 the court held that if the
lawmaker had intended to prohibit creditors from enforcing their
claims against sureties
of companies undergoing business rescue
proceedings it would have said so. It accordingly follows that the
second to fourth defendants,
being sued as sureties in the present
matter, cannot claim such immunity in terms of the provisions of
s
133(1)
of the
Companies Act of 2008
.’
In
Hitachi Construction
Machinery Southern Africa (Pty) Ltd v Botes & another
,
[11]
Williams J held that the defence that a business rescue plan does
release sureties from their indebtedness is unsustainable. See
too
Absa Bank Limited v Haremza
[12]
on the effect of a business rescue plan on a defendant’s
liability as a surety.
[18] The
defendant’s case is that the plaintiffs’ should
have
lodged their claim with the business rescue practitioner as at 11
March 2015. The argument of the plaintiffs, and one with
which I am
in agreement with, is that as this particular time the plaintiffs
were not possessed of any claim that they could have
lodged, or one
that was capable of enforcement. Hollard made payment to Sunrise
during March 2015. As Mr
King
correctly pointed out, it
is even doubtful how Hollard could have participated in the rescue
plan as it only started making payments
to Sunrise on 17 March 2015 –
after
the commencement of business rescue. When Hollard made
payment to Sunrise, this gave rise to a claim by Hollard against the
plaintiffs’,
which it duly pursued, on the basis of them having
signed a suretyship agreement. In contrast, the plaintiffs’
claim against
the defendant could only have arisen when they made
payment to Hollard. Their claim is based strictly on a surety’s
right
of recourse which accrued only once they commenced to pay
Hollard. See
Wilde & another v Wadolf Investments (Pty) Ltd &
others
[13]
where the court said the following with regard to the rights of a
surety:
‘2. The
loci
classici
of the position of a surety as a contingent creditor of
a company are
Moti and Co v Cassim
'
s Trustee
1924 AD
720
at 728 and
Rossouw and Rossouw v Hodgson and Others
1925
AD 97.
In the latter case Innes CJ said this at 102–103:
“That at once raises
the question whether the cause of the claim which a surety who has
paid or been excussed has against
the principal debtor is to be found
in the suretyship undertaking or in the payment. An examination of
the basis of the claim indicates
the original suretyship as the true
cause. Where the guarantee has been entered into at the instance of
the debtor – as happens
in the vast majority of cases –
the latter in effect gives a mandate to the surety to bind himself,
and that implies a liability
to make good any expenditure or loss to
which he may be put in consequence of the execution of the
mandate.”’
[19] I am
in agreement with the submission of the plaintiffs’
counsel
that what the defendant essentially is contending for is that the
claim of both Hollard and the plaintiffs’ arose
at the time
when Hollard paid Sunrise. The one claim arising from the
indemnity agreement and the other based on a right
of recourse as
sureties for the debt owed to Hollard. This cannot be so. A defendant
in a summary judgment application must set
out a defence which is
good in law. The argument that the plaintiffs would have been a
‘contingent creditor’ in the
business rescue plan
also fails to find traction.
Section 128
of the new
Companies Act
refers
to an ‘affected person’. There is no reference of
any sort to a ‘contingent creditor’ as falling within
this category. The closest
reference which I have been able to a definition of this term in
the
context of business rescue is “an existing legal obligation,
but the enforcement of the claim. . . is conditional or
contingent’.
[14]
See in this regard
Ellerine Brothers (Pty) Ltd v Vestacor (Pty)
Ltd; Rubenstein v Vestacor (Pty) Ltd & another (KNS Construction
(Pty) Ltd Intervening)
[15]
where Lamont J cites
Henochsberg
as authority for the
statement that ‘
a contingent creditor is a creditor for
purposes of winding up and business rescue proceedings’
. In
seeking to provide a context to the definition of
‘creditor’ as contained in
s
128(a)
of the
new
Companies Act,
Henochsberg
[16]
states that in the context of a winding up, a creditor could also
include someone who does not have a claim sounding in money but
to
whom something is due, for example, the transfer of land. Even if
this were the case, the authorities are clear that a contingent
claim
must not be unliquidated. The learned author goes on to state:
‘A surety would, as
a general rule, not fall within this definition (of a conditional or
contingent claim) because prior to
payment of the principal debt to
the creditor, the surety does not have recourse against the
debtor, and at best, only has
anticipatory relief and is therefore
not a contingent creditor:
ABSA Bank Ltd v Scharrighuisen
2000
(2) SA 998
(C).’
[20]
At the time when the business rescue plan was being drawn, the
plaintiffs’ would have had no idea as to the extent of their
claim against the defendant. Other than knowledge of the fullest
extent of their liability as set out in the agreements, or the amount
to be paid by Hollard to Sunrise (which itself was unknown
as at 11
March 2015), the plaintiffs’ would have had no idea as to the
liquidated amount of their claim.
[21]
The point is made further in
Henochsberg
[17]
that a surety does not acquire a status to participate in business
rescue plans. The learned author states:
‘However, because
the surety is not a creditor (before the existence of the right of
recourse) and therefore not an affected
person in terms of
s 128
, a
business rescue plan with the surety as party is not possible,
whether as direct party or through a subsequent tripartite agreement
“incorporated” in the business rescue plan as suggested
in
Tuning Fork
(
Pty
)
Ltd t/a Balanced Audio
....In
the
Blignaut
case
supra
para 20, however, the Court
said that the intention with business rescue is to come to the aid of
financially distressed companies
and those companies alone and it
could not have been the intention of the Legislature to include
sureties, ie by limiting or excluding
their liability.
[22]
In the result, I am satisfied that the defendant has not succeeded
in
setting up a bona fide defence which is good in law to the claim of
the plaintiffs’.
[23]
I make the following order:
1. Summary judgment is
granted against the Defendant / Respondent for payment of the sum
of
R250 000.
2. Interest on the said sum
at the prescribed rate
a tempore morae
to date of final
payment.
3. Costs of suit on the
scale as between attorney and client, such costs to include that
of
senior counsel where so employed.
Chetty J
Appearances
For the Applicants:
Adv.
JC King SC
Instructed by:
Zeiler Jankey Incorporated
50 St Andrews Drive
Durban North
Ref:
V Jankey / en / 04j008007
Tel:
031 564 1421
For
the Respondent :
Adv. A Laher
Instructed
by:
Edward Nathan Sonnenbergs
Ridgeside Office Park
Umhlanga
Tel:
031 563 8600
Ref:
D Lambert / A
Dalais / 0442846
Date reserved:
9
May 2019
Date delivered:
30
July 2019
[1]
Oos-Randse Bantoesake Administrasieraad v Santam
Versekeringsmaatskappy Bpk en Andere (2)
1978 (1) SA 164
(W) at 171G-172A.
[2]
71 of 2008.
[3]
See Cassim et al,
Contemporary Company Law
2 ed (2012)
Ch.18.8.3.
[4]
Oakdene Square Properties (Pty) Ltd & others v Farm
Bothasfontein (Kyalami) (Pty) & others
2013 (4)
SA 539 (SCA).
[5]
68 of 1969.
[6]
Eravin Construction CC v Bekker NO & others
2016 (6) SA
589 (SCA).
[7]
61 of 1973.
[8]
New Port Finance Co (Pty) Ltd & another v Nedbank Ltd
2016
(5) SA 503 (SCA).
[9]
Nedbank Ltd v Zevoli 208 (Pty) Ltd & others
2017 (6) SA
318 (KZP).
[10]
Investec Bank Limited v Bruyns
2012 (5) SA 430
(WCC) at
434F-435C.
[11]
Hitachi Construction Machinery Southern Africa Co (Pty) Ltd v
Botes & another
(205/2018)
[2019] ZANCHC 7
(15 March 2019).
[12]
Bank Limited v Haremza
(12189/2014)
[2015] ZAWCHC 73
(27 May
2015).
[13]
Wilde & another v Wadolf Investments (Pty) Ltd & others
2005 (1) SA 354
(W) at 358A-C.
[14]
P Delport
Henochsberg on the
Companies Act 71 of 2008
vol 1
service issue 15 at 445.
[15]
Ellerine Brothers (Pty) Ltd v Vestacor (Pty) Ltd; Rubenstein v
Vestacor (Pty) Ltd & another (KNS Construction (Pty) Ltd
Intervening)
(2018/14040; 2018/0018922) [2019] ZAGPJHC 85 (5
February 2019) para 4.
[16]
Note 14 above.
[17]
Henochsberg on the
Companies Act 71 of 2008
vol 2 service
issue 18 at 544.