About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 488
|
|
Skygistics (Pty) Ltd v Treurnich (71766/2014) [2015] ZAGPPHC 488 (2 June 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 71766/2014
DATE: 02 JUNE 2015
In the matter
between:
SKYGISTICS (PTY)
LTD
........................................................................................................
Applicant
And
JOHANNES DANIEL
TREURNICH
..................................................................................
Respondent
JUDGMENT
KGANYAGO AJ
[1] The applicant
has brought an application against the respondent seeking the
following orders:
1.1. Payment in
the amount R4 074 035-18;
1.2.Interest on the
aforesaid amount ofR4 074 035-18, calculated at the prime rate of
interest plus 2% per annum (as announced by
First National Bank) duly
capitalised from date of demand being 30th May 2014 to date of final
payment.
[2] In the
alternative the applicant is claiming against respondent for:-
2.1.Payment in the
amount of R2 700 000-00,
2.2.Interest on the
aforesaid amount of R2 700 000-00, calculated at the prime rate of
interest plus 2% per annum (as announced
by First National Bank) duly
capitalised, from the date of demand being 30th May 2014 to date of
final payment.
[3] The applicant is
also seeking costs against respondent on attorney and own client.
[4] On the 11th March
2007 the applicant and respondent representing Always Goods to Invest
31 CC t/a AGI31 (“AGI31”)
entered into a written
agreement for credit facilities (“First agreement”). In
terms of the first agreement, the respondent
bound himself as surety
for the due payment by AGI31. It was a material term of the agreement
that the applicant may from time
to time sell and deliver goods to
AGI31, up to the amount of a total debt owed and not exceeding the
sum of R500 000- 00 as per
the suretyship agreement.
[5] Subsequent to
signing the first agreement there was a need to increase the credit
facilities and on the 10th June 2010 a new
agreement (“second
agreement”) was entered into. In terms of the second agreement
the credit facilities was increased
and the respondent bound himself
as surety for the due payment by AGI31 for an amount not execeeding
R2 700 000- 00.
[6] AGI31 breached the
second agreement by failing to make payment to the applicant. AGI31
was expecting a VAT refund from South
African Revenue Services
(“SARS”) in the amount of R2 471 000-00. The respondent
on behalf AGI31 signed a cession agreement
on the 14th April 2011
ceding its VAT refund to the applicant.
[7] In the session
agreement, the respondent acknowledged that AGI31 was indebted to the
applicant in the sum of R3 468 619-96.
In that cession agreement,
AGI31 undertook to repay R2 700 000-00 towards the outstanding
balance to the applicant by not later
than the 27th April 2011.
[8] On the 04th June
2011 AGI31 made payment to the applicant in the amount of R2 406
399-48 pursuant to the VAT refund and further
payment in the amount
of R 290 000-00 was made on the 27th June 2011.
[9] From October 2011
to April 2014 AGI31 breached the second agreement by failing to make
payments of the amounts due. The applicant
brought a winding-up
application against AGI31, which application was not opposed. AGI31
was finally wound up.
[10]The applicant is
now pursuing its claim against the respondent by virtue of having
signed the suretyship agreement binding himself
as surety for the due
payment by AGI31. In terms of the certificate of balance signed by
Cornelius Gysbertus Johannes van Niekerk
(“Comelius”)on
behalf of the applicant, as at 17th September 2014 the capital amount
owing was R4 074 035-18.
[11] The respondent in
his answering affidavit has raised the following defences.
11.1 The
misrepresentation by Cornelius;
11.2.The dispute of
fact on papers; and
11.3.That he was not
aware of the terms of the suretyship agreement that he had signed.
[12] I will deal
first with the question whether the respondent has established a case
of misrepresentation entitling him to
cancel the second agreement. A
party seeking to avoid a contract on the ground of misrepresentation
must prove that the representation
relied upon was made, it was a
representation as to a fact, the representation was false; it was
material, in the sense that it
would have influenced a reasonable
person to enter into a contract; and it was intended to induce the
person to whom it was made
to enter into the transaction sought to be
avoided. See Novick and Another v Comair Holding Ltd and Others
1979
(2) SA 116
(W).
[13] In Brink v
Humphries & Jewell (Pty) Ltd
2005 (2) SA 419
(SCA) at paragraph 2
the court said:
" The applicable
principles of law are well established and require little discussion.
The basis of the caveat subscriptor
rule relied upon by the
respondent is the doctrine of quasi-mutual assent. The locus
classicus on the point is the following passage
in George v Fairmead
(Pty) Ltd:
‘ When can error
be said to be iustus for the purpose of entitling a man to repudiate
his apparent assent to a contractual
term? As I read the decisions,
our Courts, in applying the test, have taken into account the fact
that there is another party involved
and have considered his
position. They have, in effect said: Has the first
party-the one who is
trying to resile-been to blame in the sense that by his conduct he
has led the other party, as a reasonable
man, to believe that he was
binding himself?,.. If his mistake is due to misrepresentation,
whether innocent or fraudulent, by
the other party, then, of course,
it is the second party who is to blame and the first party is not
bound. ”
[14] In his
answering affidavit the respondent denies that the material terms as
recorded represents the intentions of the
parties at the time of
signing the second agreement. He contend that Cornelius made
representations to him at the time.
[15] According to
him it was not necessary for the applicant to enter into a further
credit facility as there was already an
agreement in place with
AGI31. The respondent contend that he was under the believe that the
surety will terminate upon payment
of the VAT refund and debtors
collections. According to the respondent, he was sure that this could
cover the outstanding amount
as he was sure that VAT will be refunded
and further that they will be able to recover debtors collections.
[16]The respondent
contend that it is upon this basis that he agreed to sign the
suretyship agreement. According to the respondent
it was absurd for
him to enter into the agreement pertaining to any future amounts, and
had he knew of the clause requiring him
to cancel the suretyship
agreement he would have exercised that right immediately after
payment.
[17] The first
agreement which the respondent has signed is similar to the second
agreement word by word. The only difference
between the first and
second agreement is that the respondent in the first agreement was
binding himself as surety to the amount
not exceeding R500 000-00
whereas in the second agreement the amount was not exceeding R2 700
000-00.
[18] When the
first agreement was cancelled the respondent wrote a letter to the
applicant informing them that they are cancelling
the first agreement
and also that they have agreed to enter into a new agreement. In that
letter of cancellation, the respondent
further wrote that he should
be released as a surety in his personal capacity as the contract has
been cancelled.
[19] This in my
view is an indication that the parties have discussed the need to
have a second agreement and the respondent
was fully aware what the
discussion were all about. After that discussion they found it
necessary to enter into a new agreement,
hence the surety amount was
increased to R2 700 000-00. Before they agreed on signing the second
agreement the parties agreed on
its terms. Therefore, the submission
by the respondent that the second agreement was not necessary is
without merit.
[20] From the
letter of cancellation of first agreement, it is clear that the
respondent was aware of the clause requiring
him to cancel the
suretyship agreement. I have already pointed out in paragraph 17,
supra, that the second agreement is similar
to the first agreement
word by word except for the amounts. He was even specific that the
surety in his personal capacity should
be cancelled. If indeed in the
second agreement, he was made to believe that he will be released
from the suretyship agreement
on payment of the VAT refund, he would
have written a letter to the applicant to be released as a surety as
he already knew the
procedure and it was not the first time he
cancels a suretyship agreement.
[21]The cession
agreement which was signed on the 14/04/11 was clear, they were
required to pay the applicant R2 700 000-00 by the
27/04/11. They
paid R2 406 399-48 on the 04/06/11 in the form of VAT refunds and
R290 000-00 on the 27/06/11. They have paid more
than the amount of
the surety. Thereafter the respondent despite been aware of the
procedure of how to be released as a surety
remained quite and did
not take any initiatives to be released. That in my view is an
indication that he wanted to remain as surety
for AGI31 for that
amount. It was only during 2014 when there was a demand for payment
which is after three years that he raised
the issue of
misrepresentation. I am not persuaded by this argument.
[22]Under the
circumstances in my view, the material terms recorded in the second
agreement represent the intentions of the parties
at the time of
signing of the agreement. The second agreement was therefore, not
induced by any form of misrepresentation.
[23]The second issue to
be determined is whether there is any dispute of fact or not.
According to the respondent, a genuine disputes
of fact have been
raised which warranted referral of the matter to trial or for the
hearing of oral evidence.
[24]In Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371(SCA)
at
paragraph 13 the court said:
“A real, genuine
and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to
raise the dispute has in his
affidavit seriously and unambiquosly addressed the fact said to be
disputed. There will of course
be instances where a bare denial meets
the requirement because there is no other way open to the disputing
party and nothing more
can therefore be expected of him. But even
that may not be sufficient if the fact averred lies purely within the
knowledge of the
averring party and no basis is laid for disputing
the veracity or accuracy of the avernment. When the facts averred are
such that
the disputing party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true or accurate
but, instead of doing
so, rests his case on a bare or ambiquous denial the court will
generally have difficulty in finding that
the test is satisfied. ”
[25]In Tamarillo (Pty)
Ltd v BN Aitken (Pty) Ltd 1982 (1) 398 (A) at 430 H-431A the court
said:
“ But if
notwithstanding that there are facts in dispute on the papers before
it, the court if satisfied that on facts stated
by the respondent,
together with the admitted facts in the applicant’s affidavit,
the applicant is entitled to relief (whether
in respect of all his
claims or one or more) it will make an order giving effect to such
finding, with an appropriate order as
to costs. ”
[26]On the aspect of
dispute of fact, the respondent is alleging misrepresentation and
also that the applicant is claiming more
than the limit of the surety
amount of R2 700 000-00. In paragraph 22 supra I have already found
that the second agreement was
not induced by any form of
misrepresentation, and therefore on this issue it does not need to be
taken any further.
[27]Whether the
applicant is entitled to claim more than R2 700 000-00 or not, does
not as such raise a real, genuine or bona fide
dispute of fact. It is
an issue which can be disposed on arguments. See Plascon-Evans Paints
v Van Riebeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[28]I have already
pointed out in paragraph 21 supra, that after payment of R2 406
399-48 and R290 000-00, the respondent did not
take any initiatives
to release himself from the suretyship of R2 700 000-00. In my view
that was an indication that he wanted
to remain bound as surety for
the due payment by AGI31 to the amount not exceeding R2 700 000-00.
In the first agreement he had
bound himself for R500 000-00. When it
was increased to R2 700 000-00 the parties have entered into the
second agreement. There
is no evidence that the second agreement was
at any stage amended. Therefore in my view the respondent is bound as
a surety for
the due payment by AGI31 to the amount not
exceeding
R2 700 000-00.
[29]Hie third issue to
be determined is whether the respondent was not aware of the terms of
the suretyship agreement. The respondent
does not dispute having
signed the suretyship agreement. The second suretyship agreement
which he had signed, had the same terms
and conditions as the first
one, except that for the second one that amount of the surety has
been increased. In Afrox Healthcare
BPK vs Strydom
2002 (6) SA 21
(SCA), the court held that persons who signed a written agreement
without reading it did so at their own risk and were consequently
bound by the provisions contained therein as if they were aware of
them and have expressely agreed thereto. The court further held
that
there were
exceptions, such as in
the event of a legal duty to point certain of the provisions in the
contract. See also Stiff v Q Data Distribution
(Pty) Ltd
2003 (2) SA
336
(SCA).
[30] As I have already
pointed out in paragraph 29 supra, this was the second suretyship
agreement to be signed by the respondent
which had the same terms and
conditions as the first one except for the amounts, it cannot
therefore, be held that there was a
legal duty on the applicant to
point out certain of the provisions in the contract. The respondent
has already demonstrated that
he was aware of terms of the first
agreement as he was able to follow the procedure of releasing himself
as a surety.
[31] The only legal
duty which the applicant can be held responsible in the second
agreement, is to point to the respondent that
the amount has changed
from R500 000-00 to R2 700 000-00. However, the respondent is not
complaining about the issue of the amount,
that in my view is an
indication that he was fully aware of the terms. The respondent is
merely trying to be selective in relation
to been aware of the terms
of the suretyship agreement. I am therefore not pursueded that he was
not aware of the terms of the
suretyship agreement.
[32] In relation to
calculation of the outstanding balance, paragraph 13.4 of the second
agreement read as follows:-
"Applicant agrees
that a statement signed by an officer of Sygistics (Pty) Ltd as to
the balance owing Skygistics (Pty) Ltd
by the applicant from time to
time shall be submitted in evidence in any be legal proceedings
without proof ”
Cornelius has signed a
certificate of balance on the 25th September 2014 showing that the
outstanding balance was R4 074 035-18.
That certificate is also
accompanied by a breakdown of how he had arrived at that amount. In
my view that is sufficient proof of
the outstanding amount. I have
already held in paragraph 28 supra that the respondent will only be
held liable for an amount not
exceeding R2 700 000-00.
[33] Counsel for the
respondent has also argued that the respondent has signed a blank
suretyship agreement and therefore it did
not comply with the
formalities in terms of section 6 of the General Law Amendment Act no
50 of 1956. It read as follows:
‘Wo contract of
suretyship entered into after the commencement of this Act, shall be
valid, unless the terms are embodied
in a written document by or on
behalf of the surety: Provided that nothing in this section contained
shall affect the liability
of the signer of an aval under the laws
relating to negotiable instruments. ”
[34] According to the
respondent the details of the name of debtor and the creditor were
completed at a later stage. In Trust Bank
of Africa Ltd v Frysch
1977
(3) SA 562
(A) at 584 G-H the court said:
“The contract is
accessory in the sense that it is of the sense of suretyship that
there be a principal obligation. At the
same time it is not essential
that the principal obligation exists at the time when the suretyship
contract is entered into. A
suretyship may be contracted with
reference to a principal obligation which is to come into existence
in the future. ”
[35] In Sapirstein and
Others v Anglo African Shipping Co (SA) Ltd 1978(4) SA 1 (A) at 12
B-D the court said:
" What s6 requires
is that the “terms” of contract of surety must be
embodied in a written document. It was contended
by counsel for the
plaintiff that this meant that the identity of the creditor, of the
surety and of the principal debtor, and
the nature and amount of the
principal debt, must be capable of ascertainment by reference to the
provisions of the written document,
supplemented, if necessary, by
extrinsic evidence by the parties (ie the creditor and surety ) as to
their negations and consensus.
I agree with this contention. In my
view, there can be no objection to extrinsic evidence of
identification being given, either
by the parties themselves, or by
anyone else, unless the leading of such evidence
can be said to amount
to an attempt to supplementary the terms of the written contract. ”
[36] The deed of
suretyship in this case identifies the principal obligation by direct
reference to goods already sold and delivered
or which may in the
future become due, owing and payable in respect of such additional
goods which the creditor may from time to
time sell and deliver to
the Principle Debtor at this request up to an amount of total debt
owed to or not exceeding the sum of
R2 700 000-00.
[37] In my view this is
sufficient to indentify the obligation of the respondent in the
suretyship agreement. He had already signed
the first agreement and
was therefore not a stranger to these type of transactions. It
therefore follows that the defence raised
that the deed of suretyship
lacks compliance with section 6 of the Act must fail.
[38] In the
circumstances, it is the court’s finding that the applicant has
succeeded with their claim in the alternative
against the respondent.
[39] In the result
the following order is made against the respondent:-
39.1 Payment of
the amount of R2 700 000-00 to the applicant.
39.2 Interest of
the aforesaid amount of R2 700 000-00 calculated at the prime rate of
interest plus 2% per annum (As announced
by First National Bank) duly
capitalised, from the date of demand being 30th May 2014 to date of
final payment,
39.3 Costs of the suit
on party and party scale.
KGANYAGO
ACTING JUDGE OF THE
GAUTENG DIVISION, PRETORIA
Heard on: 29 APRIL
2015
For the Applicant:
Adv J Hershensohn
Instructed by: Hogan
Lovells (South Africa)
Incorporated as
Routlegde Modise For the
Respondent: Adv C
Cremen
Instructed by:
Kramer Villion Norris Attorneys
Date of Judgment:02
JUNE 2015