About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 13
|
|
Qualita Seeds (Pty) Ltd v FS Peanuts Bk and Another (4080/2016) [2017] ZAFSHC 13 (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 4080/2016
In the
application between:
QUALITA
SEEDS (PTY )LTD
Plaintiff
and
FS
PEANUTS BK
First Defendant
THOMAS
FREDERIK
DREYER
Second Defendant
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
2 JANUARY 2017
DELIVERED
ON:
9 FEBRUARY 2017
[1] On 26
October 2015 the Plaintiff (Qualita Seeds) issued summons against the
First Defendant, FS Peanuts BK (FS Peanuts), and
the Second
Defendant, Thomas Frederik Dreyer (Mr Dreyer), for payment in the
amount of R 1 146 887,50 together with interest
and costs.
After a notice of intention to defend was filed on 16 November 2016
by both Defendants, Qualita Seeds now moves for
summary judgment
against the Defendants, jointly and severally, the one paying the
other to be absolved for payment of the above
mentioned.
[2] The
claim of Qualita Seeds against the Defendants is based on a written
agreement titled “ERKENNING VAN SKULD EN OOREENKOMS
OM SKULD TE
BETAAL” (“acknowledgement of debt”), annexed as
Annexure “Q1” to the particulars of claim.
In this
acknowledgement of debt Mr Dreyer represented FS Peanuts and
acknowledged in clause 1 thereof that FS Peanuts is indebted
to
Qualita Seeds in the amount of R 1 146 887,51 which amount is due and
payable in respect of goods sold and delivered by Qualita
Seeds to FS
Peanuts at the latter’s special instance and request. Qualita
Seeds’ cause of action is set out fully in
Annexures “A1”
and “A2” (Tax Invoices dated 23/11/2015 and 19/10/2015
respectively) attached to the acknowledgement
of debt. In clause 11
of the agreement Mr Dreyer bound himself as surety and co-principal
debtor towards Qualita Seeds for the
due compliance of FS Peanuts’
obligations in terms of the agreement with Qualita Seeds.
Furthermore, in clause 2 of the agreement
FS Peanuts undertook to pay
the debt together with interest in amounts and on dates as set out,
and in clause 3 it was agreed that
in the event that FS Peanuts fails
to make payment on the due dates, the full outstanding debt and costs
will immediately be due
and payable. In terms of clause 10 FS Peanuts
consents to judgment being granted in terms of the acknowledgement of
debt.
[3] In
his affidavit in opposition to the application for summary judgment,
Mr Dreyer premised the Defendants’’ defence
on the
following grounds:
3.1
The deponent to the affidavit in support of the application for
summary judgment, Johannes Carl Snyman (Mr Snyman),
failed to attach
a resolution to the affidavit in terms whereof he is authorised to
act on behalf of Qualita Seeds nor does he
the declare why the
averments falls within his personal knowledge or make any averments
in regards to the background of the matter.
3.2
The acknowledgement of debt is a credit agreement and consequently
the National Credit Act 34 of 2005 (the “Credit
Act”) and
the provisions for enforcement thereof is applicable to the
agreement.
3.3
Although Mr Dreyer admits that he signed the acknowledgment of debt,
he was misled in the signature thereof; it
came to his attention that
delivery of the goods to FS Peanuts was not effected; there is no
proof attached to the summons re delivery
of the goods and the
acknowledgement of debt does not make mention for which the debt is
due.
[4] The
first defence
in limine
dealt with Mr Snyman’s authority
to depose of the affidavit and his personal knowledge of the facts of
this matter. I find
no merit in this defence. In terms of Rule 32(2)
a plaintiff is required to file an affidavit with the application for
summary
judgment, either by himself or any other person that can
swear positively to the facts, verifying the cause of action and the
amount
claimed and stating that in his opinion there is no bona fide
defence to the action and that the notice of intention to defend has
been delivered solely for the purpose of delay. It is trite that any
person who can swear positively to the facts may depose to
the
affidavit
See:
Rees
and Another v Investec Bank Ltd
2014 (4) SA 220
(SCA) paras
[11]-[12]
Mnr
Lubbe on behalf of Defendants argued that the affidavit makes no
mention of the exact particulars of his knowledge .I do not
agree
with him. In his affidavit Mr Snyman stated “Ek was ten
alle tye self ten nouste betrokke by die besigheidstransaksies
wat
tussen die eiser en die eerste verweerder plaasgevind het. Ek dra dus
persoonlik kenis van die feite en omstandighede in hierdie
aangeleentheid.” As is evident from Annexure “Q1”
Mr Snyman is a director of Qualita Seeds and in this capacity
represented the Plaintiff in concluding the agreement. There can be
no doubt that Mr Snyman bears knowledge of the facts and
circumstances
of the matter. Moreover it has been held that the
deponent to the verifying affidavit need not be authorised by the
plaintiff to
depose to the affidavit.
See:
Collett v Firstrand Bank Ltd
2011 (4) SA 508
(SCA).
[5]
Mr Dreyer attempted to put up a defence that the Credit Act is
applicable to the acknowledgement of debt and that there was
no
compliance with the Credit Act. In terms of sec 4 of the Credit Act a
large agreement (described in sec 9(4) as an agreement
concluded in
respect whereof the principal debt is at or above the threshold
amount, currently determined at R 250 000.00)
in terms of which
the consumer is a juristic person whose asset value or annual
turnover is below the threshold value in terms
of sec 7(1) currently
being R 1 million, is exempted from the provisions of the act. It is
common cause that Qualita Seeds is a
company and FS Peanuts is a
close corporation and that the acknowledgement of debt was signed in
respect of a debt amounting to
R 1 146 887.51. Annexures
“A1” and “A2” to the acknowledgement of debt
were for goods sold and
delivered in the amounts of R 476 200
and R576 600,00 respectively. The agreement was also exempted
from the provisions
of Sec 4(2)(c) in respect of Mr Dreyer as surety
to FS Peanuts.
See:
Standard Bank v Hunkydory Investments194 (Pty) Ltd
2010 (1) SA
627
(C) at par 13-27.
I
am satisfied therefore that the acknowledgement of debt is not
subject to the provisions of the Credit Act and this defence is
without merit.
[6]
A plethora of purported defences on the merits were advanced by Mr
Dreyer. From these I have to determine whether Mr Steyn on
the merits
has set out facts which, if proved at the trial, would constitute a
defence well in law. Mr Dreyer avers that he was
defrauded into
signing the acknowledgement of debt, stating “Ek bevestig egter
dat die skulderkenning onder valse voorwendsels
aan my voorgehou en
neergele is vir ondertekening”. No further particulars of the
averred misrepresentation or fraud is disclosed,
for instance by whom
the representation was made or what the fraud or misrepresentation
entailed. It is trite that a party wishing
to rely on fraud or a
material misrepresentation must make essential allegations, one of
which is that Mr Dreyer should have he
relied, to his detriment, on
such misrepresentation into entering into the acknowledgement of
debt.
See:
(
Seven Eleven Corp of SA (Pty) Ltd v Cancun Trading NO
150 CC
2005 (5) SA 186
(SCA) at para [38].
The scant
averment by Mr Dreyer does not even come close to meeting the
essential averments to constitute fraud or misrepresentation,
and
am not satisfied that Mr Dreyer has set out the grounds on which he
rely sufficiently full to persuade met that what
he has alleged, if
proved at the trial, will constitute a defence to the plaintiff’s
claim.
See:
Breytenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 228 D.
[7] It is
averred by Mr Dreyer that after signing the acknowledgement of debt
it came to his knowledge that the goods referred to
in the
acknowledgement, were not delivered to FS Peanuts. No detail is given
on when exactly it came to his knowledge or by whom
this information
was conveyed. The averment is bald and sketchy. He furthermore avers
that that the acknowledgement did not state
in respect whereof the
debt became due. According to the first page of Annexure Q1 Mr Dreyer
is the sole member of FS Peanuts.
Not only did the acknowledgement of
debt which Mr Dreyer signed specifically state that the claimed
amount is due in respect of
goods
sold and delivered
as per
the annexed tax invoices, the latter formed part of the
acknowledgement of debt that Mr Dreyer signed and initialled with
Mr
Swanepoel on 7 September 2016. It is clear that Mr Dreyer
demonstrates a lack of bona fides in this regard.
[8] In
the Defendant’s heads of argument prepared by Adv Harms, two
new defences, not contained in Mr Dreyer’s opposing
affidavit,
were raised. The first being that the deponent to the affidavit in
supporting the summary judgment does not verify the
cause of action
and that there are in fact two causes of action. Mr Snyman declared
under oath in par 2 the following:
“
Ek
bevestig dat
: (my emphasis)
2.1
Die verweerders die bedrag soos in die dagvaarding in saak no.:
5119/2016 gevorder, aan die eiser verskuldig
is, tesame met die rente
daarin vermeld; en
2.2
Die bedrag vermeld in die dagvaarding reg bereken is, asook dat die
bedrag aan die eiser verskuldig
is weens die omstandighede en
uit
hoofde van die skuldoorsaak soos in die dagvaarding uiteengesit
(my
emphasis), die inhoud waarvan aan my bekend is.”
In my
view it is abundantly clear from the summons that the cause of action
whereupon the plaintiff relies in the particulars of
claim is the
acknowledgement of debt. There are indeed not two causes of action
but only one, which was verified by Mr Snyman.
[9] The
second ground advanced in the heads is that the is vague and
embarrassing in that the claimed amount includes interest and
does
not constitute only goods sold and delivered “when it is clear
that the acknowledgement of debt does not contain an
agreement for
interest prior to 1 September 2016.” In terms of clause 2 of
the acknowledgement of debt FS Peanuts undertook
the following: “…om
die voormelde skuldbedrag tesame met verdere rente, bereken teen
10,50%
vanaf 1 September 2016
(my emphasis) tot en met datum
van betaling…te betaal:” Mr Pienaar on behalf of the
plaintiff submitted that this issue
was never raised Mr Dreyer in
opposing the application. He argued that viewed in to talitto the
particulars of claim is not vague
and embarrassing as there could not
be any doubt by the Defendants as they knew exactly what the case
against them was. I was referred
to
Standard Bank Ltd v Roestof
2004 (2) SA 492
(W) in which Blieden J articulated at 498 C:
“
The
papers as a whole must be looked at in order for a court to come to a
conclusion as whether leave should be granted to a defendant
or not.
The function of a court should not be to protect dishonest defendants
because a plaintiff’s pleadings are less than
perfect. Each
case must be judged on its own facts.”
[10] It
is trite that the Defendants are required to satisfy me that they
have a bona fide defence which is good in law and that
they should do
so with a sufficient degree of clarity for me to ascertain whether
they have deposed to defences which, if proved
at the trial, would
constitute a good defence to the action.
See:
Maharaj v Barclays National Bank Limited
1976 (1) SA 418
(A) at 423 A-H.
This must
be done by disclosing sufficiently the grounds of its defence and the
material facts relied upon therefore.
See:
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture
2009 (5) SA 1
(SCA) at paras [30] –[34].
[11]
As alluded to in the paragraphs above, the Defendants failed to meet
these requirements. The Defendants were unable to swear
to a defence,
valid in law, which is not inherently or seriously unconvincing.
See
Mahraj
supra
at 954 E-F.
I am of
the view that Defendants are advancing defences simply to delay the
obtaining of a judgment to which they well know Qualita
Seeds is
entitled.
See:
Skead v Swanepoel
1949 (4) SA 763
(T) at 766-7.
[12] I am
also satisfied that the Plaintiff has availed itself of its duty to
clearly make out a case for summary judgment and is
entitled to
summary judgment in the amounts as claimed.
[13]
Accordingly the following order will issue:
1.
Summary judgment is granted against the Defendants, jointly and
severally, the one paying
the other to be absolved, for:
1.1
Payment in the amount of R 1 146 887.51.
1.2
Payment of interest on the amount of R 1 146 887.51
calculated at 10,5% per annum from 1 September
2016 to date of
payment.
1.3
Cost of suit on the scale as between attorney and client.
________________
C.
REINDERS, J
On behalf
of the Plaintiff:
Adv. C.D. Pienaar
Instructed by:
Jac N Coetzer Inc
c/o Phatshoane
Henney Attorneys
BLOEMFONTEIN
On behalf
of the First Defendant: Adv. E. Lubbe
Instructed by:
Theron Jordaan &
Smith
c/o Symington & De Kok
BLOEMFONTEIN