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[2018] ZAGPJHC 653
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Centenary Plant Hire CC v Acheson (37366/2018) [2018] ZAGPJHC 653 (13 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 37366/2018
In
the matter between:
CENTENARY
PLANT HIRE
CC Applicant
and
DOUGLAS ROBERT
ACHESON Respondent
J U D G M E N T
BADENHORST
AJ:
[1]
The applicant makes application for summary
judgment against respondent, who stood surety for the obligations of
CAYENNE SPORT CC
arising from a written agreement of lease. The
amount claimed is R1 900 101.71 which is calculated in a
detailed schedule
attached to the applicant’s particulars of
claim.
[2]
The applicant relies on two suretyships
signed by the respondent. The first dated 31 October 2014 (“the
first suretyship”)
is a suretyship in terms of which respondent
and the second defendant, Mr Langton, both signed as sureties. The
second, dated 16
March 2016 (“the second suretyship”) was
signed by respondent alone.
[3]
The principle which applies in proceedings
of the present kind is expressed as follows in First National Bank of
SA Ltd v Myburgh
2002 (4) SA 176
(C):
“
[9]
Because of the drastic nature of the relief sought, the Court has, in
terms of Rule 32(5), a discretion to grant the defendant
leave to
defend the action even where he has failed to comply with Rule
32(3)(b).
The Court will grant
summary judgment where plaintiff has an unanswerable case. If
the Court has the slightest doubt, the
Court will not grant summary
judgment
. (Fourlamel (Pty) Ltd v
Maddison
1977 (1) SA 333
(A) at 347H; Gilinski v Superb
Launderers And Dry Cleaners (Pty) Ltd
1978 (3) SA 807
(C) at
811E - H.)”
[emphasis added]
[4]
Counsel for the respondent argued several
technical defences. The first set of defences appear from a Notice of
Exception dated
7 December 2018 (“the exception”) and the
second set are raised in the opposing affidavit. All the exception
defences
are repeated in the affidavit. A number of the exception
points were conceded by counsel for respondent on his feet, namely
grounds
three and four.
The
exception defences
Alleged
failure to account for the deposit
[5]
The lease provides for payment of a deposit
by the tenant of R 175 595.00 (see clause 7 read with the
schedule of particulars,
paragraph12 at page 21 of the papers).
[6]
The respondent’s first ground of
exception reads as follows:
“
the
plaintiff has failed to account for the defendant’s bank
deposit/guarantee in the amount of R175 595.00 pursuant
to
clause 7 of the said lease agreement, headed ‘Deposit of Bank
Guarantee’, read with paragraph 7 of plaintiffs particulars
of
claim and the payment reconciliation attached as annexure ”C”
which does not reflect the aforesaid deposit
”.
[7]
Clause 7 of the lease provides for a
deposit to be paid, not by the respondent (defendant/surety) but by
the tenant. This fact is
obviously fatal to the proposed exception
point.
[8]
Moreover and in any event, annexure C to
the claim reflects the financial information for the period 1 October
2017 to 31 December
2018. The deposit was required to be paid long
before this period, so it will of course not be reflected in annexure
C.
[9]
I reject this defence as devoid of merit.
No
certificate
[10]
This ground of exception is duplicated in
the respondent’s second and fifth grounds of exception.
[11]
The point made by respondent is that in
terms of clause 23 of the lease, “
a
certificate … shall be prima facie proof of the amount of any
indebtedness owing by the tenant to the landlord at any time
…” and that the applicant’s failure to annex a
certificate renders its claim excipiable.
[12]
A certificate is manifestly optional. There
is no obligation on the applicant (landlord) to make use of a
certificate to prove the
amount owing.
[13]
I accordingly reject this defence.
Two
suretyships
[14]
As noted above, the respondent first signed
a suretyship together with Mr Langton. Clause 3 thereof provides as
follows:
“
the
liability of the sureties in terms of this suretyship shall be joint
as well as several
”.
[15]
The second suretyship was signed at a later
date by the respondent alone.
[16]
Counsel for respondent takes the following
point in paragraphs 17.3 and 17.4 of the Notice of Exception:
“
17.3 By
having only one party sign the second suretyship the joint and
several liability was equally compromised. The first and
second
defendants are seemingly not bound by the second suretyship which the
plaintiff relies upon.
17.4 The first
defendant has been prejudiced by the plaintiff’s failure to set
out the alleged claim against the principal
debtors and accordingly
is not in a position to plead to the plaintiffs particulars of claim
which is based entirely upon suretyships
giving rise to an alleged
ancillary indebtedness
.”
[17]
I have to confess that counsel’s
complaints are difficult to comprehend – the objection in
paragraph 17.3 appears to
make something of the fact that respondent
signed the second suretyship alone. But no defence arises from that
fact. The legal
position remained the same throughout, considering
that already in terms of the first suretyship, respondent’s
liability
is joint and several.
[18]
In the second paragraph it is stated that
plaintiff failed to set out the alleged claim against the “principal
debtors”.
But this is an incorrect allegation – in
paragraph 7 of the particulars of claim, it is stated that CAYENNE
(the tenant),
the “principal debtor” (singular), breached
the lease agreement by failing as agreed to pay the monthly rental
and
charges resulting in arrears of R1 900 101.71 as set
out in annexure “
C
”.
[19]
The seventh ground of exception introduces
matter which is extraneous to the particulars of claim, namely an
email dated 5 February
2018 which is alleged, in the exception, to
establish “
a tacit acceptance of a
reduction in respect of the monthly rental obligations of Cayenne for
the remainder of the year 2018, as
contemplated by the parties
”.
[20]
The fundamental problem with this line of
reasoning is of course the trite principle that an exception cannot
be founded upon facts
which do not appear in the particulars of
claim.
[21]
During argument the email relied upon by
the respondent was handed up by consent – it is from applicant
to the respondent
and reads as follows:
“
Hi Doug,
You need to do
this as a matter of urgency as the account is getting to the stage
where drastic action needs to be taken. We have
not even received the
R150 000 payment you proposed to pay. At least make this payment
in the interim as we finalise a solution
going forward. As we
currently stand the amount payable is approximately R624 000.00.”
[22]
The email, manifestly, does not support the
allegation made in respondent’s Notice of a so-called “
tacit
acceptance of a reduction
” of the
tenant’s monthly rental obligations.
The
defences raised in the affidavit (in addition to the Notice of
Exception)
The
attack on the capacity of the deponent to the affidavit filed in
support of summary Judgment and the alleged inadequate wording
thereof
[23]
Respondent’s first contention is that
Ms Jacobs, who deposed to the affidavit, “is clearly not in a
position to swear
positively to the facts” (par 6.5).
[24]
Ms Jacobs describes her position to be that
of Property Manager employed by Broll Property Group, the plaintiff’s
duly authorized
managing agent..” and she says that she is
“…
able to and do swear
positively to and verify both the facts, causes of action as well as
amounts set out in plaintiff’s particulars
of claim …and
confirm all such to be true and correct
”.
[25]
Nowhere in respondent’s affidavit
does he respond to these allegations on any meaningful, factual,
basis. There is accordingly
no basis on which this Court can reject
what Ms Jacobs says and the defence must fail.
[26]
A related point made by respondent is that
“
Jacobs does not verify either the
plaintiff’s cause of action or the amount
”.
But, as appears from the words cited in paragraph [24] above, there
is no substance in respondent’s incorrect statement.
Not
a liquidated amount of money
[27]
Confusingly, respondent raises this point
twice and under separate headings.
[28]
The amount claimed is plainly a liquidated
amount of money. Respondent’s contentions to the contrary are
devoid of merit.
The
dispute resolution clauses allegedly not adhered to
[29]
Respondent cites clause 33 of the lease
(not the suretyship) which prescribes an extra curial dispute
resolution process involving
a referee.
[30]
Remarkably, it is contended that applicant
“
followed the incorrect procedure
in seeking redress
” in the
present proceedings.
[31]
The applicant is, of course, pursuing the
respondent in terms of the suretyships, not the lease. There is no
prescribed dispute
resolution process in the suretyships. The dispute
resolution clause in the lease is entirely irrelevant. This defence
must also
fail.
The
15 kilometers rule
[32]
It is alleged in paragraph 64 of the
opposing affidavit that the applicant’s attorney has failed to
comply with Rule 17 (3)
which provides as follows:
“
(3) (a)
Every summons shall be signed by the attorney acting for the
plaintiff and shall bear an attorney's physical address, within
15
kilometres of the office of the registrar, the attorney's postal
address and, where available, the attorney's facsimile address
and
electronic mail address.”
[33]
This point was not pursued by counsel for
the respondent in argument before me and I assume that it has,
wisely, been abandoned.
[34]
Even if it is correct that applicant’s
attorney’s offices (in Fairland, Johannesburg) are a little
more than the required
distance away from the seat of the Court,
there being no suggestion of any prejudice suffered by the
respondent, I would have regarded
this as so unimportant in the
circumstances of this matter that I would have condoned the
non-compliance.
CONCLUSION
[35]
In conclusion, I am satisfied that the
applicant has an unanswerable case and I accordingly grant summary
Judgment as follows:
(a)
Payment of the amount of R1,900,101.71;
(b)
Interest on the above at the rate of 12%
per annum from 2 October 2018 to date of payment;
(c)
Costs of suit on the scale of attorney and
client (as provided for in terms of the lease).
_______________________
CHJ
BADENHORST AJ
Acting
Judge of the High Court of South Africa,
Gauteng
Local Division
APPEARENCES
For
the applicant: Mr J.G. Dobie
Instructed
by: REAAN SWANEPOEL ATTORNEYS
For
the respondent: Mr A. ALLISON
Instructed
by: ROTHBART INC ATTORNEYS
Date
of hearing: 11 December 2018
Date
of judgment: 13 December 2018