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[2016] ZAGPPHC 636
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Esterhuizen v Stan Rio Pipe and Steel (Pty)Limited (64166/2015) [2016] ZAGPPHC 636 (22 July 2016)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION. PRETORIA)
DATE: 22 JULY
2016
CASE
NO: 64166/ 2015
In the matter between:-
ANDRIES J H ESTERHUIZEN
APPLICANT
and
STAN RIO PIPE AND STEEL (PTY) LIMITED RESPONDENT
JUDGMENT
APPLICATION FOR
LEAVE TO APPEAL DELIVERED ON 22 JULY 2016
VILAKAZI AJ:
[l
]
In a judgment delivered on 29 January 201 6, I granted
summary judgment in favour of the Respondent in the amount of R503
393.68
, interest at 9% per annum tempore morae on R503 393.68 until
the full debt is extinguished and costs on the scale of attorney
and
own client.
[2] The Applicant has applied for leave to appeal against the
whole of that judgment.
[3] The test in respect of applications for leave to appeal is
well established. I am to consider, in determining this application,
is there a reasonable prospect that another court would on appeal
come to a different conclusion than that reached by this court.
[4] The position with regard to the assessment and determination
of summary judgment application is well established. The test
is
whether the Defendant has set out in its opposing affidavit what is
referred to as a bona fide defence. A bona fide defence
entails more
than the allegation of matter, which on its face would amount to a
defence. It requires, in order for the bona tides
requirement to be
satisfied, the setting out of sufficient factual allegations to
persuade the court that the defence raised,
is raised not only in
name, but in substance.
[5] The claim of the respondent against the applicant arises from
a deed of suretyship in terms of which the applicant bound himself
as surety and co- principal debtor in favour of the Respondent in
respect of all the obligations of Nansu Staal (Pty) Ltd, the
principal debtor, with registration number 1996/05360/07 with a
credit limit of R5OO 000.00 arising from an agreement of sale
and
deed of suretyship entered into with the Respondent. The application
for leave to appeal was premised upon 2 grounds, firstly;
[6] The applicant challenges the validity of the deed of
suretyship and consequently the debt relied on by the respondent.
Page
1 of the application for credit facilities and suretyship makes
mention of Nansu Staal (Pty) Ltd and its registration number. The
details of the principal debtor on page 2 are not inserted. On the
very same page the terms and conditions of the agreement of
sale and
deed of suretyship was signed by a Mr AJ Esterhuizen in his capacity
as director, surety and co-principal debtor on 6
May 2014. Clause 12
of the terms and conditions provides that the party who has appended
their signature hereto on behalf of
the purchaser binds himself as
surety and co- principal debtor in solidum and in favour of the
Respondent, the seller, in favour
of all the obligations of the
purchaser, past, present and future. The signatories hereto renounce
the benefits of excussion and
cession of action.
[7] The critical question here is whether the deed of surety is
invalid in terms of section 6 of the General Law Amendment Act
50 of
1956 as the applicant seems to suggest.
[8] On the face of this document I am satisfied that it appears
to be a valid deed of suretyship. The identity of the principal
debtor is easily ascertainable and identifiable on page 1 of this
agreement.
[9] The next determination is what capacity the Applicant signed
in. Page 2 clearly illustrates that he signed in two capacities
on
behalf of the company, Nansu Staal, being the principal debtor and
also as surety. Consequently his defence that the deed of
suretyship
is invalid is without merit and falls to be dismissed.
[ l
0]
The second ground of appeal is that the respondent has
approved a business rescue plan of Nansu Staal (Pty) Limited, the
principal
debtor and consequently the obligations of the applicant
in his capacity as surety is suspended.
[11] The applicant' s assertion is incorrect. The business rescue
plan establishes an agreement between the creditor and the principal
debtor not to sue until the happening of a future event. There is no
reference or stipulation of the obligations of theapplicant
in his
capacity as surety of Nansu Staal in the business rescue plan
(see
New Port Finance Company (Pty) Ltd
v Nedbank Ltd
[2015] 2
ALL SA 1
SCA.
There is nothing that
prevents the respondent from proceeding against the surety. The fact
that the respondent has approved the
business rescue plan does not
mean the respondent has renounced its rights against the surety. The
compromise arrangement by the
creditors, if any, does not affect the
rights of creditors against a third party.
[12] I conclude that the applicant failed to show that there is
reasonable prospect of success on appeal and another court would
come to a different determination. Viewed holistically
there are no other reasons an appeal should be heard.
[13]
In the result the appeal is dismissed with costs
TD VILAKAZI
ACTING JUDGE OF THE HI
GAUTENG,
PRETORIQ
APPEAR ANCES:
FOR APPLICANT : ADV R RAUBENHEIMER
INSTRUCTED BY : HACK STUPPEL
&
ROSS
FOR RESPONDENT : STOOP SC
INSTRUCTED BY : COETZER
&
PARTNERS
DATE HEARD : 20 JULY 201 6