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[2018] ZAGPPHC 80
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Land Agricultural Development Bank of South Africa v African Spirit Mauize Meal and Others (1930/2015) [2018] ZAGPPHC 80 (16 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 1930/2015
NOT
REPORATBLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
LAND
AGRICULTURAL DEVELOPMENT BANK
OF
SOUTH
AFRICA
PLAINTIFF
And
AFRICAN
SPIRIT MAIZE MEAL
PROCESSING
PLANT (PTY) LTD
1
ST
DEFENDANT
EDMUND
RAULPH BARUCH
2
ND
DEFENDANT
MARIE
EVE LESCA BARUCH
3
RD
DEFENDANT
MEMELA
INVESTMENTS HOLDINGS
4
TH
DEFENDANT
BHELEKHAZI
EUSABIA MDANDALAZA
5
TH
DEFENDANT
JAMES
WAITSE
PULE
6
TH
DEFENDANT
JUDGMENT
Fabricius
J,
1.
At
the commencement of the trial, and by agreement between the parties,
I made the following order:
"1.
That the following issues be separated for judgment as provided for
in terms of
Rule
33 ( 4) of the
Uniform Rules of Court.
1.1
The allegations in paragraph 6 .1 of the
Plaintiff's Particulars of Claim read together with the Defendants'
response thereto as
pleaded in paragraph 26 of its plea;
1.2
All issues raised by the Plaintiff in its
replication read together with the Defendants' rejoinder thereto.
2.
That the Court, having regard to the separation
of issues as agreed upon between the parties, make a finding as to
whether the Second
Defendant had bound the Second and Third
Defendants as sureties in favour of the Plaintiff for debts owed to
it by the First Defendant.
3.
That all remaining issues as they appear from the
pleadings be postponed
sine die
for
later adjudication thereon."
2.
The
said paragraph 6.1 reads as follows:
"6.1
On or about 15 September 2010, the Second and Third Defendants bound
themselves to and in favour of the Plaintiff jointly, severally and
in
solidum
with the
First Defendant as sureties and co-principal debtors for the
indebtedness for the First Defendant to the Plaintiff from
whatever
cause arising for payment of the sums of R5 590 000,00 and R4 000
000,00. Copies of the written and signed deeds of suretyship
are
annexed and marked as
"LAND9'
and
the Plaintiff prays for the contents thereof to be incorporated
herein as if specifically set out."
3.
Paragraph
26 of the Plea reads as follows:
"2
6.1 The Defendants aver that:
26.1.1
The Second Defendant signed the written suretyship agreements on or
about 16 September 2010, which agreements are annexed
to the
Plaintiff' s Particulars of Claim as Annexure "LAND9" ("the
suretyship agreements");
26.1.2
The Third Defendant did not sign the suretyship
agreements and the signature which is reflected on page
6 of the
suretyship agreements is not the Third Defendant's signature and in
fact the Third Defendant's signature has been forged
on the
suretyship agreements.
2
6. 2 On a proper construction and
interpretation of the suretyship agreements:
26.2
.1 A joint contract of co-suretyship as between the Second and Third
Defendants was intended;
26.2.2
Both the Second and Third Defendants had to sign the suretyship
agreements;
26.2.31f
either the Second and/or the Third Defendant did not sign the
suretyship agreements, the suretyship agreements would be
incomplete
and therefore would not comply with the requirements of Section 6 of
the
General Law
Amendment
Ac( No. 50 of 1956 ("the General Law Amendment Acf)
and
would therefore be invalid;
26.2.4
The fact that the Third Defendant did not sign the suretyship
agreements as her signature was forged thereon constituted
an
omission of one of the material requirements in terms of the
provisions of Section 6 of the
General
Law
Amendment Act"
4.
In
the replication, the Plaintiff pleaded that the Second Defendant was
involved in the day-to-day management of the First Defendant,
and he
negotiated the terms of the loan agreement and the instalment sale
agreement with the Plaintiff.
The
Second Defendant signed the surety agreement in the ordinary course
of business as co-manager and director of the First Defendant,
and in
so doing he bound the joint estate of the Second and Third Defendants
as sureties in favour of the Plaintiff. By virtue
of
s. 15
(
6
) of
the
Matrimonial Property Act 88 of 1984
,
the consent of the Third Defendant was
not required to bind the joint estate.
5.
In
the rejoinder to the replication, the Defendants averred as follows:
"1.1.1
The fact that the Third Defendant had to sign the suretyship
agreement as provided for on page 6 of the same was not
a consent
requirement as envisaged in terms of
Section 15
of the
Matrimonial
Property Ac( No. 88 of
1984
("the
Matrimonial Property Act')
as
:
1.1.1.1.1
Section 15
(
2
) (a) of the
Matrimonial
Property Act
is
not a suretyship
requirement but a requirement relating to immovable property;
1.1.1.1.2
Section 15
(2) (h) of the
Matrimonial
Property Act
was
not applicable as
the suretyship agreements were signed by the Second Defendant in the
ordinary course of his profession, trade
or business of the First
Defendant and in the capacity as a director and shareholder of
the First Defendant and in
the premises, the written consent of the
Third Defendant as envisaged in terms of
Section 15
(2) (h) of
the
Matrimonial Property Act
was
not required in order to give validity to the suretyship agreements
signed by the Second Defendant;
1.1.1.1.3
The suretyship agreements would not have
reflected the name of the Third Defendant on page 1 thereof;
1.1.2
In the premises and by virtue of the aforesaid facts and
circumstances, a joint contract of co-suretyship
as between the
Second and Third Defendants was intended and both the Second and
Third Defendants had to sign the suretyship agreements."
6.
I
may add at this stage that debts are incurred by persons, rather than
by estates, and that when the marriage is in community of
property,
both spouses are generally liable for payment of the debts that are
incurred by one of them. It follows that a creditor
may look to the
estates of both debtors for the recovery of the debt.
See:
L. du Plessis v M. Pienaar N.O. and Others,
51412001 SCA,
delivered on 26 September
2002, at par. 5.
7.
On
behalf of the Defendants it was argued that their straight-forward
case was that having regard to the terms of the suretyship
agreement,
a joint contract of co- suretyship between the Second and Third
Defendants was at all times intended. In that context,
reference was
made to
SOC/ETE COMMERCIALE DE MOTEURS v
Ackermann
1981 (3) SA 422
(A).
The
facts of that case however show that the relevant document therein
required the signature of six persons, where in fact only
two were
signatories. The form and whole tenor of that particular document
indicated an intention that all six persons should sign,
failing
which, the omission of such
essentialia
i.e.
the parties to the particular contract, made the document
incomplete, and not in compliance with the provisions of s.
6 of the
General Law Amendment
Act 50 of 1956.
8.
On
behalf of Plaintiff it was submitted that this case was clearly
distinguishable. The Second and Third Defendants were married
in community of property. There was therefore only one joint debtor.
The suretyship agreement refers to both the Second and Third
Defendants as being married in community of property and in the main
refers to the surety in the singular. There is no reference
to "we".
Reference is only made to "I" or "me". At the end
of the document where the signatures appear,
next to the name of the
Third Defendant, is a reference to s. 15 ( 2) (a) of
Act
88 of
1984.
This obviously refers to the consent that
was not required herein, as is common cause. There is in my opinion
no indication whatsoever
in this deed of suretyship that would place
it within the ambit of the reasoning of the
Ackermann
decision
supra.
There
is no indication that the agreement would not be valid or come into
operation unless both Second and Third Defendants signed
it and that
one signature was conditional upon the other. If indeed a joint
contract had been intended, so as to bring it within
the parameters
of the
Ackermann
decision
supra,
then that would
have to be decided by evidence. Having regard to the wording of the
document itself, and the pleadings, I am of
the view that
circumstances would have to be pleaded specifically to bring the
present instance within the ambit of the
Ackermann
decision. This has not been done. There
is therefore no reason not to interpret the deed of suretyship at
face value.
9.
The
following order is therefore made:
It
is declared that Second and Third Defendants have lawfully and
validly bound themselves as sureties
in
favour of the Plaintiff for debts owed
to it by the First Defendant.
The
Second and Third Defendants are ordered to pay the costs of this
action on an Attorney and client basis.
JUDGE
H.J FABRICIUS
JUDGE
OF THE HIGH COURT GAUTENG DIVISION, PRETORIA
Case
number: 1930/2015
Counsel
for the Plaintiff:
Adv P. L. Uys
Instructed
by:
Gildenhuys Malatji Inc
Counsel
for the 2
nd
and
3
rd
Defendants:
Adv K. Lewine
Instructed
by:
Joshua Apfel Attorneys
Date
of Hearing:
12 March 2018
Date
of Judgment:
16 March 2018 at 10:00