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2016
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[2016] ZAGPPHC 1087
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JHL Services and Consulting (Pty) Ltd v Maroos and Another (93219/15) [2016] ZAGPPHC 1087 (18 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
18/11/2016
CASE
NO.: 93219/15
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
JHL
SERVICES & CONSULTING (PTY)
LTD Plaintiff
and
L
MAROOS First
Defendant
G
C CONSTRUCTION (PTY)
LTD Second
Defendant
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
The plaintiff seeks that provisional sentence be
granted against the first and second defendants in the amount of R4
264 140.76,
together with interest thereon at the rate of 9% per
annum and costs on the scale of attorney and own client. The
provisional sentence
is premised upon a written acknowledgment of
debt and admission of liability to which it appears a deed of
suretyship is attached.
2.
The acknowledgment of debt was granted by the
first defendant in his personal capacity and by the second defendant
represented by
the first defendant.
3.
The first defendant entered into the said deed of
suretyship in favour of the plaintiff in respect of the second
defendant's obligations
to the plaintiff.
4.
The first defendant admits his signature on the
acknowledgment of debt and admission of liability and on the deed of
suretyship.
5.
The defendants oppose the application for
provisional sentence on a number of alleged defences.
6.
During argument, it was submitted on behalf of
counsel representing the defendants that the second defendant has
commenced business
rescue proceedings subsequent to the institution
of the application for provisional sentence. The status of those
proceedings has
not progressed further than the issue and service of
the required application.
7.
Mr van den Berg who appears on behalf of the
plaintiff submitted that he was unaware of the second defendant's
commencement of business
proceedings and was only advised thereof in
court when Mr Groenewald, who appears on behalf of the defendants,
raised the issue
in court. The opposing affidavit makes no mention of
that issue. Neither was any supplementary affidavit submitted wherein
that
issue was raised. It is merely mentioned from the bar. No
attempt was made to place a copy thereof before the court, nor was
any
evidence of service thereof advanced. Mr Groenewald merely
submitted that he is so instructed.
8.
It follows that the issue of commencement of
business rescue proceedings in respect of the second defendant, and
the resultant effect
thereof on the present proceedings cannot be
definitively determined at present. It would thus follow that
determination of provisional
sentence proceedings against the second
defendant should be deferred until sufficient proof of the
commencement of those
proceedings is placed before court.
9.
The defences raised by the defendants are the
following:
(a)
The debt claimed is not due and owing;
(b)
There is a dispute of fact that cannot be
determined upon the papers filed;
(c)
The instrument of acknowledgment of debt is not a
liquid document;
(d)
The instrument of acknowledgment of debt does not
contain a material term agreed upon by the parties;
(e)
The deed of suretyship was signed by the
plaintiff's attorney on behalf of the plaintiff and no authority in
that regard has been
pleaded and hence the instrument is invalid;
(f)
The existence of an alleged oral agreement that
payment in terms of the acknowledgment of debt is deferred until the
second defendant
receives payment from a third party, Eskom;
(g)
Alleged non-compliance with the provisions of the
National Credit Act, 34 of 2005
.
10.
In the heads of argument filed belatedly on
behalf of the defendants, no submissions in respect of the defence
relating to non-compliance
with the provisions of the
National Credit
Act are
made. However, Mr Groenewald made oral submissions in that
regard. Those submissions were directed at the alleged commencement
of business rescue proceedings on behalf of the second defendant. No
submissions were made in respect of that Act as to its applicability
to the acknowledgment of debt in respect of the first defendant. I
have indicated above that the issues pertaining to the second
defendant is to be deferred.
11.
In so far as the cause of action may also be
premised upon the deed of suretyship, it can be dealt with summarily.
12.
It appears that the first defendant has bound
himself as surety in favour of the plaintiff in respect of the second
defendant’s
obligations to the plaintiff in respect of a lease
agreement.
13.
The acknowledgment of debt clearly relates to an
acknowledgment of liability in respect of
the
supply of labour and the handling of all payroll-functions
by
the plaintiff. None of the further documents relied upon in support
of the application for provisional sentence makes mention
of any
lease agreement.
14.
The deed of suretyship was granted in respect of
the second defendant's due compliance with its obligations to the
plaintiff
vis-a-vis
the
lease agreement. No mention is made in the acknowledgment of debt of
any suretyship to be entered into, nor does the suretyship
refer to
the acknowledgment of debt.
15.
Mr van den Berg submits that the suretyship is
accessory to the acknowledgment of debt. Mr Groenewald echoes that
submission. Whether
that submission is correct is of no consequence
for present purposes.
16.
It follows that the deed of suretyship is of no
relevance for present purposes.
17.
The defences relating to the alleged debt not
being due and owing, the alleged dispute of fact and the
non-liquidity of the acknowledgment
of debt are premised more or less
on the same alleged facts. I intend to deal with the aforementioned
defences together.
18.
The first basis upon which the defendants rely on
in respect of the allegation that the acknowledgment of debt does not
constitute
a liquid document is rather curious. It is alleged that
the said instrument stipulates an amount of R6 514 140.76 being owed,
whilst
the claim in the provisional summons is for an amount of R4
264 140.76. The defendants do not dispute these amounts, nor that the
amount in respect of payments that were made is incorrect. The
defendants admit that payments were made in terms of the
acknowledgment
of debt.
19.
The
submission, as I understand it, is that where the instrument being
relied upon contains an amount different to that being claimed,
albeit for a lesser amount, the document does not constitute a liquid
document for the reason that the amount can no longer be
determined
readily. There is no merit in that submission. The document headed
"Acknowledgment Of Debt And Admission Of Liability"
clearly
stipulates a specific amount admittedly due and owing in respect of
clearly stipulated services and the acknowledgment
of indebtedness is
unconditional. It meets the requirements for a liquid document.
[1]
20.
The defence that the amount is not due and owing
is linked to the alleged material term that allegedly was agreed
upon, yet does
not appear in the said instrument. However, the
defendants do not allege that the said instrument stands to be
rectified, nor do
they state the circumstances or reasons why the
said express term was not included in the said acknowledgment of
debt. The alleged
express term not contained in the said instrument
apparently relates to the condition that payment would only be made
once the
second defendant receives payment from a third party. There
is no merit in that submission.
21.
Further in this regard, the defendants also
allege that in terms of an alleged oral agreement, details of which
are wanting, payment
in terms of the acknowledgment of debt was
deferred until the second defendant received payment from a third
party.
22.
Either the deferment of payment, or the condition
in that regard, is an express term of the said instrument, or it is
the subject
of a further agreement. Should it be the subject of a
further agreement, then it cannot be an express term agreed upon on
conclusion
of the acknowledgment of debt. In that regard, the
acknowledgment of debt is unconditional. On a clear and purposive
reading of
that instrument, no such term can be inferred or read in.
23.
In the event that the deferment of payment is the
subject of a further and later agreement, the defendants have not
discharged their
onus in that regard. The plaintiff denies such
agreement, whether at the time of conclusion of the acknowledgment of
debt or at
any later stage. No facts in support of the contention
relating to a further and subsequent oral agreement are provided. The
two
versions as to when the term was supposedly agreed upon are
mutually destructive.
24.
In so far as the non-liquidity of the
acknowledgment of debt relates to the aforementioned condition of
deferment of payment is
concerned, there is equally no substance in
such submission.
25.
The defence of alleged dispute of fact relates to
the amount due and owing. I have already dealt with that defence.
There is no
merit in that submission.
26.
It follows that the plaintiff is entitled to
provisional sentence in the amount due and owing.
I
grant the following order:
(a)
Provisional sentence is granted against the first
defendant in the amount of R4 264 140.76;
(b)
The first defendant is ordered to pay interest on
the amount of R4 264 140.76 at the rate of 9% per annum from 4 June
2015 to date
of payment;
(c)
The first defendant is to pay the costs on an
attorney and client scale;
(d)
Provisional Sentence against the second defendant
is postponed
sine die,
and
leave is granted to the parties to supplement their papers, if so
required.
______________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Plaintiff:
J G van den Berg
Instructed
by:
Jonker Vorster Inc
On
behalf of Respondents:
J H Groenewald
Instructed
by:
L Smith Attorneys
[1]
Rich et al v Lagerwey 1974(4) SA 748 (AD) at 755