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[2017] ZANCHC 71
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Business Partners Limited v Africa Unlimited Safaris and Others (985 / 08) [2017] ZANCHC 71 (19 June 2017)
IN THE HIGH COURT OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(Northern
Cape High Court, Kimberley)
Saakno:
/ Case number:
985 / 08
Datum
verhoor: / Date heard: 25/
11 / 2016
Datum
gelewer: / Date delivered:
19/6/2017
Case Number. 985/2008
In
the matter between:
BUSINESS
PARTNERS LI
MITED
PLAINTIFF
and
AFRICA
UNLIMITED
SAFARIS
1st DEFENDANT
ELIZABETH
KEMP
2nd DEFENDANT
PETRUS
JOHANNES
KEMP
3rd DEFENDANT
JUDGMENT
COETZEE,
AJ
[1]
Plaintiff
claims payment of R 502,374.56 by way of the outstanding balance on a
Loan Agreement, and R68,598.26 & R 152 ,833
.34 ln respect of
amounts due and owing in terms of a Royalty Agreement for arrears and
future royalties. The claim was instituted
against the first
defendant, a close corporation (as principal debtor) which has,
subsequent to the institution of the action,
been liquidated as well
as the second defendant (Elizabeth Kemp) and the second defendant’s
husband (Petrus Johannes Kemp)
as sureties and co-principle debtors.
The second defendant has, in the interim passed away. The trail
proceeded only against the
third defendant as surety and co-principle
debtor.
[2]
The
trial commenced on 25 October 2016.
[3]
At
the commencement of the trail, Plaintiff submitted the following:
3.1
A certificate in terms of
Section 15
of
the
Electronic Communications and Transactions Act, 25 of 2002
which
contained f u 11 statements of the entries on both the Loan Agreement
and the Royalty Agreement
3.2
A certificate ln terms of the Loan
Agreement reflecting the current outstanding balance as being R
678,552 63.
3.3
A certificate in terms of the Royalty
Agreement reflecting the arear royalties as amounting to R
212,299.00. The effluxion of time
had the effect of erasing the
distinction between arear and future royalties .
[4]
The
Plaintiff called one witness, Tertius Louw (Louw), who had been
involved in the initial transaction, and who identified the
signatures of the parties to the Loan Agreement and the suretyship
which the Third Defendant had signed. Louw was aIso abIe to
identify
the signature of Daniel Johannes Frey, the legal manager of the
Plaintiff who had, on 1 3 October 2016, prepared the certificate
in
terms of
section 15
of
the
Electronic
Communications and Transactions Act 25 of 2002
.
This
conclude the plaintiffs' case.
[5]
Third
defendant, in his plea and in evidence (in essence), denies liability
on two grounds and avers that (a) the Plaintiff is precluded
from
claiming from the surety because it breached the terms of clause 5 of
the Royalty Agreement and (b) Plaintiff failed to prove
the amount
claimed.
PLAINTIFF IS PRECLUDED FROM
CLAIMING FROM THE SURETY BECAUSE IT BREACHED THE TERMS OF CLAUSE 5 OF
THE ROYALTY AGREEMENT.
[6]
Clause 5 of the Royalty Agreement
provides as follows:
"Iindien die Lener nie sy
begroting behaal nie sal Business Partners 'n mentor of Konsultant
benoem en die Lener sal sodanige
mentor of konsultant aanstel vir die
termyn wat Business Partners na goeddunke bepaal. Die Lener sal die
koste van sodanige mentor
of konsultant dra".
[7]
It
is common cause that the principal debtor did not achieve the targets
and that Business Partners did not appoint a mentor. In
this regard
Mr. Tredoux, on behalf of the plaintiff submitted that there was, no
obligation on Business Partners to appoint a mentor,
just to nominate
one. This submission, in my view, is correct .
[8]
Business
Partners did not nominate a mentor and the reason therefor is
unclear. Louw testified that the business of the first defendant
never really got off the ground. He was of the view that, as there
was no turnover due to no business, it follows that the budgeted
amounts would not have been achieved, and it would not have been
necessary for Business Partners to make the nomination.
[9]
Louw
conceded in cross examination by Mr. van Rensburg on behalf of the
second defendant that Business Partners did not fulfill
their
obligations under
section 5
of the Royalty Agreement. I am however of
the view that this concession, as far as it refers to "not
complying with the obligations
under clause 5 of the Royalty
agreement" is misconceived.
[10]
Mr
. van Rensburg, on behalf of the third defendant, contended that
plaintiff's non-fulfilment of its obligations in terms of clause
5
precludes the plaintiff from claiming under the suretyship agreement
as plaintiffs claim against the principal debtor would have
been a
claim for specific performance and plaintiffs' non-performance would
have been a good defense to the avail of the principle
debtor. This
contention can, in my view, only be correct if the wording of clause
5 is susceptible to an interpretation that the
"obligation"
demands a reciprocal obligation.
[11] In
order to decide whether it is open to a defendant to raise this
defense in any particular case it
is necessary to decide whether the
term of the agreement, is one to which the principle of reciprocity
applies.
[12]
The
principles to be applied were set out by Corbett J in
ESE
Financial Services) Pty) Ltd
v
Cramer 1973(2) SA 805 (C) ([1973]
3 All SA 199
(C)):
For reciprocity to exist there
must be such a relationship between the obligation to be performed by
the one party and that due
by the other party as to indicate that one
was undertaken in exchange for the performance of the other and/ in
cases where the
obligations are not consecutive, vice versa.
[13]
From
the evidence of Louw it is clear that the there was no turnover,
hence, no obligation arose for the Plaintiff to appoint a
mentor or
consultant.
[13]
Applying
these principles I am of the view that the provisions of clause 5
does not constitute a reciprocal obligation and therefor
I find that
third defendants defence, in this regard, is devoid of substance.
PLAINTIFF FAILED TO PROVE THE
AMOUNT CLAIMED.
[14]
The
defendant contends that certain amounts allegedly paid by the
principal debtor were not credited to either the Loan Agreement
and/or the Royalty Agreement.
[15]
These
amounts are the following:
a)
An amount of R 10 000,00 allegedly paid
on 16 October 2008.
b)
An amount of R 10 000,00 allegedly paid
on 16 January 2009.
c)
An amount of R 39 000,00 allegedly paid
on 25 March 2009.
d)
An
amount of R 9 000,00 allegedly paid on 20 May 2009.
e)
An
amount of R 257 011,20 allegedly paid on during February by the
liquidators of the principle debtor.
[16] From
the statements attached to the certificates (see paragraph 3.1
supra)
it appears that the following amounts were received:
a) The
payment of R 10 000.00 allegedly made on 16 January 2009 (see
paragraph 15 (b) above)is
reflected as having been received on 12
March 2009.
(b)
The
payment of R 39 000.00 allegedly made on 25 March 2009 (see paragraph
15 (c) above) is reflected as having been received on
6 April 2009.
(c)
The
payment of R 9 000.00 allegedly made on 20 May 2009 (see paragraph 15
(d) above) is reflected as having been received on 2 June
2009.
(d)
The
payment of R 257 011.14 allegedly made during February 2011 (see
paragraph 15(e) above) is reflected as having been received
on 21
February 2011 and 13 October 2011.
[17] With
regard to the alleged payment of R 10 000,00 made on 16 October 2008
third defendant testified
that he was present when his deceased wife
transferred the amount to her attorneys. There was no evidence that
this amount was
transferred to the plaintiff by the attorney.
[17]
In
view of the above I am of the view that the defendant did not disturb
the
prima facie
proof
of indebtedness.
[18]
In
argument Mr Tredoux, on behalf of the plaintiff, moved for judgment
in the amounts set out in the certificates and for an amendment
of
the pleadings to adjust the claim amount accordingly. This
application was not opposed by the defendant and is hereby granted.
IN THE RESULT I MAKE THE
FOLLOWING ORDER:
1.
THIRD
DEFENDANT IS ORDERED TO PAY TO PLAINTIFF THE OF AMOUNT OF R
890,229.63.
2.
INTEREST
ON THE ABOVE AMOUNT CALCULATED AT THE RATE OF 10.5% A
TEMPORE
MORAE.
3.
COSTS OF SUIT.
COETZEE
WJ
ACTING
JUDGE