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[2017] ZAGPPHC 395
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SDV South Africa (Pty) Limited v Lucas Macintyre Jele Construction and Another (61964/15) [2017] ZAGPPHC 395 (31 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 61964/15
Date:
2017 03-31
Reportable:
NO
Of
interest to other judges: NO
Revised
In
the matter between:
SDV
SOUTH AFRICA (PTY)
LIMITED
PLAINTIFF/RESPONDENT
and
LUCAS
MACINTYRE JELE CONSTRUCTION
(PTY)
LIMITED T/A LMJ CONSTRUCTION
FIRST
DEFENDANT/EXCIPIENT
GYSBERT HENDRIK GEORGE
LUCAS
SECOND
DEFENDANT/EXCIPIENT
JUDGMENT
COLLIS
AJ:
INTRODUCTION
[1]
On 29 June 2016 the first and second defendants raised an exception
on three grounds, namely, that the Plaintiff's amended summons
lack
the necessary averments to sustain a cause of action, does not
disclose a cause of action and that it does not comply with
the
requirements of Rule 18(4). The Plaintiff disagrees and opposes the
exception.
[2]
Before dealing with the issues it is important to look at Rule 18(4)
which provides as follows:
"[4]
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his
claim, defence
or answer to any pleading, as the case may be with sufficient
particularity to enable the opposite party to reply
thereto".
There
are accordingly two separate requirements. The first is that the
pleader must set out the material facts upon which it relies
for its
claim and the second is that these material facts must be set out
with sufficient particularity to enable the opposite
party to reply
thereto.
In
Jowel v Bramwell.Jones & Others
1998 (1) SA 836(W)
at 903A-B
the
following was stated:
"A
distinction must be drawn between the facts probanda, or primary
factual allegations which every Plaintiff must make and
the fact
probantia, which are the secondary allegations upon which the
Plaintiff will rely in support of his primary factual a/legations"
.
[3]
The basic principle according to McCreath J in Trope v South African
Reserve Bank and Another and Two Other cases
[1]
,
is that particulars of claim should be raised in such a way that the
Defendant
"may
reasonably and fully be required to plead thereto".
Parties
must be able to come to trial prepared to meet each other's case and
not be taken by surprise. The ultimate test must be
whether the
pleading complies with the general rule enunciated in Rule 18(4) and
the principles laid down in our existing law.
[4]
Pleadings are expected to be lucid, logical and intelligible. The
factual allegations made must clearly disclose the cause of
action or
defence. (Harms Civil Proceedings in the Supreme Court at 26 3- 4).
[5]
The Defendants' exception is directed to one aspect of the
Plaintiff's claim, namely the allegation that the suretyship relied
upon by the Plaintiff as contained in the credit application of the
First Defendant, fails to comply with the requirements of Section
6
of the General Law Amendment Act 50 of 1956
('the Act’).
[6]
Section 6 of the Act provides as follows:
"No
contract of suretyship entered into after the commencement
[2]
of this Act shall be valid,
unless the terms thereof are embodied in
a
written document signed by
or on behalf of the surety; provided that nothing in this section
shall affect the liability of the signer
of an aval under the laws
relating to negotiable instruments."
[7]
I now turn to consider the particulars of claim in the current matter
and the complaint on which the exception is based.
GROUND
OF COMPLAINT
[8]
In paragraph 6.2.of the amended summons it is alleged that:
'The
Second Defendant for and on behalf of the First Defendant accepted
the Plaintiff's standard trading terms and conditions of
sale as
attached and bound himself as co-principal debtor jointly and
severally for all the debts and obligations of the First
Defendant to
the Plaintiff from whatsoever cause arising.(the permission clause of
Annexure "A")'
[9]
In paragraph 10.2 it is alleged that:
'By
virtue of the first defendant's failure to pay the aforesaid amount
to the plaintiff, and pursuant to the second defendant's
said
suretyship undertaking the second defendant is jointly and severally
liable with the first defendant to the plaintiff in the
aforesaid sum
of R 4 279 072,97.'
[10]
With regards to this ground of complaint, it is alleged that for its
claim against the Second Defendant, the Plaintiff purports
to rely
solely and exclusively on the following sentence in the alleged
"permission clause":
"The
undersigned further binds himself/herself
as
co-principal
debtor jointly and severally."
[11]
On behalf of the Defendants, it was contended that the alleged
suretyship undertaking does not sustain the allegations in paragraphs
6.2 and 10.2 and is in fact contradictory to those allegations in
that the alleged suretyship undertaking does not refer to the
alleged
creditor, the alleged debtor or the alleged debts or
obligations.
[12]
Furthermore, it was contended that nowhere in the Plaintiff's
standard terms and conditions is there any reference whatsoever
to
the alleged suretyship undertaking. In addition thereto, the alleged
suretyship undertaking is not incorporated in the standard
trading
terms and also, that nowhere in the alleged suretyship undertaking is
there any reference whatsoever to the trading terms
and conditions.
Furthermore, clause 2.1 of the Plaintiff's standard trading terms and
conditions provide that:
"All
and any business undertaken or advice, information or services
provided by the Company whether gratuitous or not,
is
undertaken
or provided subject to these Standard Trading
Terms".
[13]
The Plaintiff carries the
onus
that the alleged suretyship
agreement complies with the requirements of the General Law Amendment
Act. A Plaintiff who wishes to
claim on a deed of suretyship must
allege and prove the following
[3]
:
(a)
A valid contract of suretyship
Here
the terms of the contract must have been embodied in a written
document signed by or on behalf of the surety. The document
must set
out at least the identity of the creditor, the surety, the principal
debtor and the nature and the amount of the principal
debt must be
capable of ascertainment by reference to the provisions of the
written document.
(b)
That the causa debiti is one in respect of which the defendant
undertook liability;
and
(c)
The indebtedness of the principal debtor.
[14]
Failure to complete the essential terms of a suretyship agreement
means that the contract is invalid for failure to comply
with the
statutory requirements.
[4]
It should also be borne in mind that a suretyship is always an
accessory obligation,
[5]
to the main agreement.
[15]
Where an exception is based upon the interpretation of a contract (as
in the present matter being
a
deed of suretyship)
the
excipient must demonstrate that the contract is unambiguous and that
the meaning which he or she contends for is the correct
one.
[16]
To the matter at hand the Defendants contend i.e. that the identity
of the surety is unknown, that it is unclear whether the
surety is a
limited or unlimited one, that the identity of the principal debtor
is unknown and that the debts and obligations for
which the surety
was signed, is also not disclosed.
[17]
The excipient bears the duty to persuade the court that the pleading
is excipiable on every interpretation that can reasonably
be attached
to it.
[6]
It is important to bear in mind that the pleading must be looked at
as a whole.
[7]
The permission clause to my mind cannot be looked at in isolation to
the pleaded case of the Plaintiff.
[18]
As to the pleaded case, counsel for the Plaintiff contended that it
is the Plaintiffs pleaded case that annexure "A"
be
incorporated into the particulars of claim as if specifically
pleaded
[8]
and it is in this annexure where the permission clause is contained
in.
[19]
Ex facie
the permission clause the undersigned is listed as
Gys Lucas (the
surety)
who signed in his capacity as director
of Lucas Macintyre Jele Construction (Pty) Ltd (the
principal
debtor'),
who applied for credit from SDV South Africa (Pty) Ltd
(the creditor).
[20]
The permission clause further contains the phrase
".........................
that the undersigned further binds
himself/herself
as
co-principal debtor jointly and severally."
[21]
Counsel for the Plaintiff further contended, that annexure "A"
being the Plaintiff's credit application has included
in it, standard
trading terms of which clause 19 thereof specifically provides as
follows:
"Unless
otherwise specifically agreed by the Company in writing, the Customer
shall pay to the Company in cash immediately
upon presentation of
invoice, all sums due to the Company without deduction or set-off and
payment shall not be withheld or deferred
on account of any claim or
counterclaim which the Customer may allege."
[22]
The said payment clause (Clause 19) was also pleaded by the Plaintiff
in paragraph 7 of the particulars of claim.
[23]
The pleading having to be looked at as a whole and with specific
reference to the payment clause in my opinion does indeed
reflect a
reference to the debt and obligations in respect of which the surety
had bound himself.
[24]
In Novartis South Africa (Pty) Ltd v Maphil Trading (Pty) Ltd
2016
(1) SA 518
(SCA) Lewis JA held:
"A
further principle to be applied in a case such as this is that a
commercial document executed by the parties with the intention
that
it should have commercial operation should not lightly be held
unenforceable because the parties have not expressed themselves
as
clearly as they might have done. In this regard see Murray &
Roberts Construction Ltd v Finat Properties ( Pty) Ltd
1991 ZASCA
130
;
1991 (1) SA 508
(A) at 514B-F, where Hoexter JA repeated the
dictum of Lord Wright in Hillas & Co Ltd v Arcos Ltd
[1932] UKHL 2
;
147 LTR 503
at 514:
Business
men often record the
most
important agreements in crude and
summary fashion; modes of expression sufficient and clear to them in
the course of their business
may appear to those unfamiliar with the
business far from complete or precise. It
is
accordingly the
duty of the court to construe such documents fairly and broadly,
without being too astute or subtle in finding defects."
[25]
Having regard to the pleaded case of the Plaintiff, read together
with annexure A and the standard trading terms and bearing
in mind
the
onus
as carried by the Defendants, I cannot conclude that
the permission clause failed to comply with the provisions of section
6 of
the General Law Amendment Act and thereby also failed to comply
with the provisions of Uniform 18(4) as quoted above.
ORDER
[26]
In the result I make the following order:
[26.1] The exception taken by the
Defendants is dismissed with costs.
___________________
C.
J. COLLIS
ACTING
JUDGE GAUTENG DIVISION PRETORIA
APPEARANCES:
FOR
PLAINTIFF/RESPONDENT: ADV. B.D. HITCHINGS
INSTRUCTED
BY: BREYTONBACH MOSTERT
SKOSANA
INC.ATTORNEYS
FOR
DEFENDANTS/EXCIPIENTS: ADV.Y. GOERTZEN
INSTRUCTED
BY: VAN DER MERWE & BESTER INC.
DATE
OF HEARING: 17 MARCH 2017
DATE
OF JUDGMENT: 31 MARCH 2017
[1]
1992 (3) SA 208
(T) at 210 G-J
[2]
Commencement date 22 June 1956
[3]
Amlers Precedents of Pleadings Seventh Edition pg 367
[4]
Nedbank
Ltd v Wizard Holdings (Pty) Ltd and Others 2010 (5) SA 523
[5]
Fourlamel (Pty) Ltd v Maddison 1977(1) SA 333 (A) at 345
[6]
Picbel
Groep Voorsorgfonds (in Liquidation) v Somerville and Related
Matters
2013 (5) SA 496
(SCA) at 501A B
[7]
Nel and Others NMO v McArthur
2003 (4) SA 142
(T) at 149F
[8]
Particulars of Claim
paragraph 5 pg 4