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[2017] ZAFSHC 193
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Cos Vrystaat Kaap Bedryf Beperk v du Plessis and Another (2803/2017) [2017] ZAFSHC 193 (19 October 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2803/2017
In
the matter between:
COS
VRYSTAAT KAAP BEDRYF
BEPERK
Plaintiff
(REGIST
RASIENOMMER: 1999/004069/06)
and
WILLEM
ABRAHAM DU
PLESSIS
First
Defendant
(ID
NO: [...])
ISABEL
DU
PLESSIS
Second
Defendant
(ID
NO: [...]
HEARD
ON:
17 AUGUST 2017
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
19
OCTOBER 2017
[1]
The plaintiff, Oos Vrystaat Kaap Bedryf Beperk, issued summons
against the defendants Willem Abraham du Plessis and Isabel du
Plessis (first and second defendants respectively) on 20 October 2016
for
inter alia
payment in the amount of R 269 857.77 together
with interest at 15% per annum calculated from 1st April 2017 until
date of payment.
The plaintiff avers that the principal debtor
Beestekraal Boerdery (Edms) Beperk owes the plaintiff the claimed
amount and interest
and that the defendants bound themselves in
writing as sureties and co-principle debtors on 22 October 2014.
Having been served
with the summons the defendants entered appearance
to defend. Plaintiff now moves for summary judgment against the
defendants.
[2]
Plaintiff relies on an affidavit by its legal services manager who
confirms the cause of action, the amount claimed in the summons,
that
the defendants have no bona fide defence and entered appearance to
defend solely with the purpose of delaying plaintiff's
claim.
[3]
The two defendants filed opposing affidavits and resist the
application on several grounds.
[4]
It is incumbent on a plaintiff in summary judgment proceedings to
establish its claim clearly.
See:
Maharaj v Barclays Natioal Bank Ltd
1976 (1) SA 418(A)
The
defendants in their opposing
affidavits have various complaints
and these
complaints essentially all boils down thereto that plaintiff has not
made out a proper case for summary judgment.
[5]
It is contended that the summons on a proper reading thereof is in
fact a combined and not a simple summons. As such defendants
aver
they are prejudiced in that they are legally prohibited from
excepting thereto. The point that defendants wish to raise is
not
clear. A simple summons is not a pleading and cannot be attacked by
way of an exception.
See:
Icebreakers No.83 (Pty) Ltd v Medicross Healthcare Group (Pty)
Ltd
2011 (5) SA 130
KZD at 131 F-H.
I
am of the view that the simple summons contains more than ample
allegations to enable the defendants to ascertain what the
allegations
against them are.
[6]
The complaint by defendants that plaintiff's attorney did not sign
the combined summons at least also in his capacity as attorney
with
the right of appearance in terms of sec 4(2) of the Right of
Appearance in Courts Act 62 of 1995 is nor here nor there as
same is
a simple summons which does not require the signature of either
counsel or an attorney with the right of appearance.
[7]
The defendants contend that plaintiff should have notified the
principle debtor at least ten days beforehand of the principal
debtor's failure to comply with its obligations. I agree with Mr
Tsangarakis on behalf of plaintiff that the cause of action against
defendants is the deed of suretyship stating in clause 12.2
thereof as follows:
"Hierdie
borgstelling sal ten volle afdwingbaar wees teen die BORG, ongeag:
12.2.1....
12.2.2
'n versuim om die Borg van enige verstek, vertraging, versuim of
kontrakbreuk deur die SKULDENAAR in kennis te stel."
In
view of this finding it is not necessary to consider the argument by
Mr Tsangarikis that the notices in terms of sec 129 of the
National
Credit Act 34 of 2005 (affixed as Annexures “12” and “13”
to the summons) are
demands as envisaged by clause
7.1.2 of the quotation for credit. Without deciding this point I am
inclined to think that the said
notices are not notices of breach but
instead statutory notices of compliance.
[7]
The deed of suretyship confirms that the plaintiff may institute its
action in the magistrate court. Pursuant thereto the defendants
aver
that this court has no jurisdiction to entertain the matter. I do not
agree. Not only is there no merit in such a view,
it was
agreed in clause 22.3 of the deed of suretyship that plaintiff is
entitled to proceed in the High Court.
The deed of
suretyship was entered into at Jacobsdal in the jurisdictional
area of this court.
[8]
The defendants contend that the claim by the plaintiff is not an
easily calculatable amount and therefore not liquid. Defendants
relied upon and referred me to
Botha v Swanson
&
Company (Pty) Ltd
1968 (2) PH F85 (C). Plaintiff
relies on
Bekker
&
Another v
Oos-Vrystaat Kaap Kooperasie Bpk
[2000)
3 All
SA
301
(A) and more in particular para [21] of the judgment. In the
judgment the appellate division as it then was interpreted the clause
in a contract where it was agreed by the principal debtor that absent
an objection to statements of account within 3 months from
date of
such statement, it is to be considered conclusive proof of the amount
owed. Clause 18 of the deed of suretyship provides
for a certificate
of
inter alia
a manager of plaintiff to prima facie prove the
amount, interest, interest rate and financing costs owing by the
defendant. Such
a certificate indicating the amount as well as the
interest rate is annexed as annexures "6" and “11”
to
the summons in respect of the first and second defendants
respectively. I do not agree with Mr Janse van Ransburg on behalf of
defendants that the claim of the plaintiff is not and easily
calculatable amount.
[9]
The result of the aforegoing is that none of the complaints of the
defendants are sufficient to convince me that plaintiff has
not prima
facie made out a case for summary judgment. Once a plaintiff has made
out such a case, it is expected of the defendant
to furnish its
defence under oath in a manner which is not inherently unconvincing.
It is not expected of the defendant to proof
its defence at this
stage. He or she must merely aver facts which if proven at the trial
will constitute a defence.
See:
Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T)
Having
had that opportunity none of the defendants disclosed any defence on
the merits. Once that is so, there is nothing left at
the trial to
consider and no reason for me to exercise my discretion in favour of
the defendants. The remedy of summary judgment
is no longer
considered as "drastic" and is aimed at ensuring that
recalcitrant debtors pay what is due to a creditor.
It only hold
terrors and are “drastic” for a defendant who
has no defece.
See:
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture
2009 (5) SA 1
(SCA)
The
plaintiff is entitled to summary judgment.
[11]
Accordingly the following orders are granted:
11.1
Judgment in the amount of R 269 857.77 against both defendants
jointly and severally the one
to pay the other to be absolved.
11.2
Payment of interest on the amount of R 269 857.77 calculated at 15%
per year from 1
st
of April 2017 until date of payment,
which interest will be calculated on a daily balance basis and
monthly capitilised.
11.3
Payment of credit life insurance
premiums at
the rate of
R 0.51 per R 1 000.00 per month on the monthly balance
calculated from
1
st
April 2017 until date of payment.
11.4
Costs of suit.
_____________________
C.
REINDERS, J
On
behalf of the Plaintiff:
Adv. S. Tsangarakis
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On
behalf of the Defendants:
Adv. G.S. Janse van Rensburg
Instructed by:
Phatshoane Henney
Attorneys
BLOEMFONTEIN