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[2018] ZAGPJHC 700
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Mitre Wood Products CC v Shungube and Another (11221/2018) [2018] ZAGPJHC 700 (28 November 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE
NO. 11221/2018
In
the matter between:
MITRE WOOD PRODUCTS CC
(Registration No.
2006/131534/23) Applicant
and
JABU LUTHER SHUNGUBE
(ID
No.
…)
First
Respondent
VINCENT GATLEY
(ID No.
…) Second
Respondent
JUDGMENT
REDMAN
AJ:
[1]
The
respondents are the co-directors of Indalo Shopfitters (Pty) Limited
(in liquidation). Indalo is indebted to the applicant
in the
amount of R874 648,95 in respect of goods sold and delivered.
On 17 November 2017 a letter of demand was addressed
by the
applicant to Indalo in accordance with the provisions of section
345(1)(a) of the Companies Act, 1973 demanding payment.
On
receipt of the demand the second respondent addressed an e-mail to
the applicant's attorney advising that due to unforeseen
circumstances Indalo was unable to meet its commitments. On 24
January 2018, the applicant launched an application for the
winding-up
of Indalo which was set down for hearing on 15 March 2018.
[2]
On 30
January 2018, the first and second respondents signed an
Acknowledgment of Debt in terms of which Indalo acknowledged that
it
was indebted to the applicant in the amount of R874 648,95 and
undertook to repay the amount in monthly instalments. The
Acknowledgement
incorporated suretyships in terms of which the
respondents bound themselves, jointly and severally, as sureties and
co-principal
debtors
in
solidum
with Indalo for payment of Indalo's obligations to the applicant
under the Acknowledgement of Debt.
[3]
The
following provisions of the Acknowledgement of Debt incorporating the
suretyships are relevant –
§
Indalo
acknowledged that it was indebted to the applicant in an amount of
R874 648,95 being in respect of goods sold and delivered,
together with interest at the prime rate of interest charged by the
applicant's bankers from time to time, plus 2%.
§
Indalo
undertook to liquidate the capital and interest by way of twelve
equal monthly instalments of not less than R72 887,71 with
the first
instalment to be paid by 28 February 2018.
§
In
the event of Indalo defaulting in the due performance of any of its
obligations in terms of the Acknowledgement of Debt, then
in that
event –
·
the
full balance then outstanding in terms of the Acknowledgement of Debt
would become due and payable;
·
the
applicant at its election could proceed on the basis of the
Acknowledgement of Debt, or on the basis of any other action which
may have been instituted against Indalo by the applicant prior to
date of signature of the Acknowledgement of Debt.
§
By
their signatures the respondents bound themselves jointly and
severally as sureties and co-principal debtors,
in
solidum
,
with Indalo for payment of all Indalo's obligation to the applicant
in terms of the Acknowledgement of Debt and renounced the
legal
benefits and exceptions
non
numeratae pecuniae, non causa debiti,
revision
of accounts
,
errore calculi
and
de
duobus vel pluribus res debendi
,
and declared themselves acquainted with the meaning and effect of
those exceptions and of the renunciation of the benefits thereof.
§
The
respondents agreed that all the terms and provisions of the
Acknowledgement of Debt would apply equally to them in their
capacities
as sureties and co-principal debtors
[4]
In
breach of its obligations under the Acknowledgement of Debt, Indalo
failed to make payment of the first instalment of R72 887,71
by 28
February 2018, and on 15 March 2018 the application for the
winding-up of Indalo which has been launched by the applicant
was
granted.
[5]
On 19
March 2018, the applicant brought the current application wherein it
seeks judgment against the first and second respondents,
jointly and
severally, for payment of the amounts due to the applicant under the
Acknowledgement of Debt and Suretyships, together
with interest.
[6]
The
respondents admit having signed the Acknowledgement of Debt
incorporating the suretyship undertakings, and concede that the
amount claimed is due by Indalo.
[7]
In
their answering affidavits the respondents contend that they signed
the suretyship undertakings on condition that the applicant
withdrew
the liquidation application which had been brought against Indalo.
They suggest that they only signed as sureties
and co-principal
debtors on the understanding that the applicant would withdraw the
liquidation application immediately.
[8]
The
second respondent further contends that his wife, to whom he is
married in community of property, did not consent in writing
or
otherwise to him entering into the suretyship and alleged that the
signing of such suretyship "
due
to its nature, as more fully set out ...
[in his affidavit],
is
not in the ordinary scope of business."
MISREPRESENTATION / CONDITION
[9]
There
Is no doubt that there is a dispute of fact on the papers as to the
circumstances giving rise to the conclusion of the Acknowledgement
of
Debt. The respondents contend that an agreement was reached between
the applicant, represented by their attorney, and the respondents
that they would bind themselves as sureties and co-principal debtors
in respect of the debt due by Indalo on condition that the
applicant
withdraws the liquidation application. The applicant, on the
other hand, concedes that there was an agreement but
suggests that it
was not on the terms alleged by the respondents, The applicant
avers "
that
subject to Indalo and the respondents executing and concluding the
AOD / suretyship agreement, strict compliance by them with
the terms
of payment set forth therein the liquidation application would be
held in abeyance but not withdrawn, until such time
as the total
indebtedness was paid in full
".
[10]
The
approach to disputes of fact in affidavits has been crystallised in a
number of judgments. In
Fakie
N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA), Cameron J described the test as follows:
"[55]
That conflicting affidavits are not a suitable means for determining
disputes of fact has been doctrine in this court
for more than 80
years. Yet motion proceedings are quicker and cheaper than
trial proceedings, and in the interests of justice
courts have been
at pains not to permit unvirtuous respondents to shelter behind
patently implausible affidavit versions or bald
denials. More
than sixty years ago, this court determined that a judge should not
allow a respondent to raise ‘fictitious’
disputes of fact
to delay the hearing of the matter or to deny the applicant its
order. There had to be ‘a bona fide
dispute of fact on a
material matter’. This means that an uncreditworthy denial, or
a palpably implausible version, can be
rejected out of hand, without
recourse to oral evidence. In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
this
court extended the ambit of uncreditworthy denials. They now
encompassed not merely those that fail to raise a real,
genuine or
bona fide dispute of fact, but also allegations or denials that are
so far-fetched or clearly untenable that the Court
is justified in
rejecting them merely on the papers.
[56]
Practice in this regard has become considerably more robust, and
rightly so. If it were otherwise, most of the busy motion
courts in the country might cease functioning. But the limits
remain, and however robust a court may be inclined to be, a
respondent’s version can be rejected in motion proceedings only
if it is ‘fictitious’ or so far-fetched and clearly
untenable that it can confidently be said, on the papers alone, that
it is demonstrably and clearly unworthy of credence."
[11]
The
applicant argues that albeit that a dispute of fact has arisen on the
papers, it is neither material nor believable. I have
carefully
considered the allegations made by the parties in relation to the
discussions which took place between the applicant's
attorney and the
respondents leading up to the finalisation of the Acknowledgement of
Debt. It is evident that, prior to
the institution of the
liquidation application, neither of the respondents had bound
themselves as sureties and their decision
to do so appears to have
been influenced by the pending liquidation application and the
assurances given to them by the applicant's
attorney.
[12]
The
respondents assert that it was necessary that the liquidation
application immediately be withdrawn as this was a pre-requisite
for
certain funding which had been negotiated on behalf of Indalo from
the IDC and the DTI. The respondents provide scant
information
relating to the funding which had been allegedly negotiated and fail
to attach any evidence corroborating this averment.
[13]
The
respondents argue that by agreeing that the suretyship was
conditional upon the immediate withdrawal of the liquidation
application,
the applicant's attorneys had fraudulently
misrepresented the true position, alternatively the conclusion of the
suretyship in
the absence of such condition vitiated the suretyship.
[14]
For
the purposes of determining this matter on affidavit, I am not
required to assess the probabilities unless I am satisfied that
there
is no real and genuine dispute or that the respondents' allegations
are so far-fetched and untenable or so palpably implausible
to
warrant their rejection.
[15]
Although
the respondents have not counter-applied for a rectification of the
agreement or explained the reason as to why they appended
their
signatures to an agreement which did not record the true intention of
the parties, I cannot conclude that their version is
so implausible
that it can be rejected out of hand. There was clearly some
discussion and an agreement reached between the
parties relating to
the liquidation proceedings. Whether that agreement entailed
the immediate withdrawal of the liquidation
application, or merely a
temporary suspension thereof, is a matter which should properly be
tested by oral evidence. I am
cognisant of the fact that clause
4.2 of the written agreement preserves the applicant's right at its
election to proceed on the
Acknowledgement of Debt or any other
action which may have already been instituted against Indalo prior to
the date of signature
thereof. This, however, merely
constitutes a probability favouring the applicant's version.
[16]
In
the light of my conclusion it is unnecessary at this juncture to make
a determination on whether the defence of the second respondent
under
the
Matrimonial Property Act, 88 of 1984
is sustainable.
[17]
In
the circumstances, I make an order in the following terms:
1.
The
matter is referred to trial.
2.
The
notice of motion and founding affidavit are to stand as the summons.
3.
The
answering affidavit is to stand as the notice of intention to defend.
4.
The
applicant is to deliver its declaration within twenty days of date
hereof.
5.
The
normal rules of court relating to trial and discovery process will be
applicable to the further conduct of the proceedings.
6.
The
costs of the application will be costs in the cause.
_________________________
N REDMAN
Acting Judge of the
High Court
Heard:
8 October 2018
Judgment
delivered:
___ November 2018
Appearances:
For
Applicant: M Mostert
Applicant's
Attorneys: Martini-Patlansky
Tel:
011 487 1091
Ref:
Mr Patlansky M 671
For
Respondents: A Russell
Respondents'
Attorneys: Pule Incorporated
Tel:
011 463 6693
Ref:
Mr Forster MAT11516