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[2015] ZAGPPHC 1046
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Business Partners v NT Makhubela Enterprise CC and Others (48567/2014) [2015] ZAGPPHC 1046 (20 August 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
(HIGH
COURT OF
SOUTH
AFRICA)
CASE
NO: 48567/2014
In
the matter between:
BUSINESS
PARTNERS
APPLICANT
I
PLAINTIFF
(Reg
No. : 1981/0009/18/06)
AND
NT
MAKHUBELA ENTERPRISE CC
1
st
RESPONDENT/ DEFENDANT
(ID
No.: […....])
NATHANIEL
TSAKANE MAKHUBELA
2
nd
RESPONDENT/ DEFENDANT
HITEKANI
FAST FOODS CC
3
rd
RESPONDENT/DEFENDANT
Reg
No.: 1999/051085/23
JUDGMENT
MAKUME
J
[1]
This is an application for summary judgment. I shall refer to
the Applicant as the Plaintiff and the Respondents
as
Defendants.
[2]
The Plaintiff s claim against the defendants is based on a loan
agreement entered into between the Plaintiff and the First Defendant
where in the second and Third Defendants bound themselves as surety
and co principal debtors in
solidum
to the
Plaintiff for the due and proper repayment by the 1st Defendant of
the amount loaned.
[3]
Annexure 'A" to the loan agreement is a document titled "Royalty
Agreement". The Royalty agreement forms an integral
part of the
loan agreement in terms of which besides repayment of the loan the
Defendants agreed to pay to the Plaintiff a fixed
amount annually
calculated on the bi monthly VAT returns submitted by the 1st
Defendant to the Commission of Revenue.
[4]
On receipt of the summons the Defendants entered appearance to defend
on the 9th September 2014. The application for summary
judgment was
delivered on the 18th September 2014 and was enrolled for hearing for
the first time on the 2?1h October 2014.
[5]
On the 23rd October 2014 the Defendants instead of filing an opposing
affidavit to the application for
summary
judgment filed a substantive application seeking a
postponement. The mam reason advanced
for seeking a postponement was
that the Full Bench was seized with a matter between Business
Partners and Silverstars Trading 245
CC in which the validity of the
Royalty agreement was to be decided.
[6]
Another reason advanced for seeking a postponement was that the
Defendants and their advisors were in the process of calculating
the
amount including VAT payments made to the Plaintiff as Defendant
intended to reclaim those payments as having been made wrongfully.
The Defendants needed time to finalise the calculations. It was said
that once the calculations shall have been properly done then
those
payments will serve to extinguish the entire debt incurred in terms
of the loan agreement.
[7]
The Defendants deny that they do not have a
bona fide
defence and indicated that in approximately two weeks
the calculations referred to above would have been finalised.
[8]
In conclusion the Defendants placed in issue the signatures on the
deed of suretyship as not being those of the 2nd and 3rd
Defendants.
The Defendants indicated that this aspect had been referred to
forensic experts for investigation.
[9]
It was on the basis of what appears in the affidavit by Defendant's
attorney that the application for summary judgment was postponed
sine
die
on the 2ih October 2014.
[10]
On the 1th June 2015 the plaintiff enrolled the application for
summary judgment for hearing on the 3rd August 2015. The Plaintiff
did so after the Full Bench had on the 27/5/2015 handed down judgment
in the matter of Business Partners Pty (Ltd) v Silverstars
Trading
245 CC case number 14408/2008 North Gauteng High Court. In that
judgment the Full Bench concluded that the Royalty agreement
was
valid.
[11]
The Defendants filed and served their opposing affidavit resisting
the granting of summary judgment on the 30 July 2015 one
day before
hearing on the 3 August 2015.
[12]
In the affidavit deposed to by the second defendant on behalf of all
three defendants the following were raised as defences
to the claim:
12.1
That a company known as Yoltsa Trading CC in which the Second
Defendant is the sole member has a claim for
damages in the amount of
R l 1.9 million and that the Second Defendant intents to cede that
claim to the 1st Defendant to be raised
as a counterclaim to
this action.
12.2
That the Royalty agreement was unlawful and unconstitutional.
12.3
That the Royalty agreement was a simulated agreement which was used
to secretly raise further interest without
that aspect having been
explained to the Defendants.
12.4
That the Royalty agreement was an agreement m contravention of the
Conventional Penalties
Act.
12.5
The Second Defendant denies that the
signature on the
suretyship by the 3rd Defendant is
his signature.
12.6
That the Plaintiff s affidavit does not meet the requirements of Rule
32 (1).
[13]
I now deal with each of the defences raised in both the postponement
affidavit as well as in the opposing affidavit and commence
with the
Defendant's bold and unsubstantiated allegation that the Plaintiff s
application does not meet the requirements of Rule
32 (1). Rule 32
(1) read as follows:
"Where
the defendant has delivered notice of intention to defend the
plaintiff may apply to court for summary judgment on each
of such
claims in the summons as is only-
(a)
On a liquid document
(b)
For a liquidated amount in money
(c)
For delivery of specified movable property or
(d)
For ejectment together with any claim for interest.
[14]
The Plaintiff s claim on both the loan agreement and the Royalty
agreement are liquidated amounts in money. The Defendant has
not said
why they are not liquidated. This defence is accordingly dismissed.
[15]
The other defence raised is the Defendant's desire to cede a claim
that one of his business entities has against the Plaintiff
to the
1st Defendant to enable the 1st Defendant to raise
that as a counterclaim. The argument advanced
in support
of this contention is so far-fetched and legally untenable that it
requires no further consideration. That defence is
equally dismissed.
[16]
Then there is the defence disputing the signatures of the
second Defendant on the deed of suretyhip. The
Defendant raised
this issue as far back as October 2014 and told the court then that
he has referred that aspect to forensic experts.
What is strange is
that nine months later still no forensic report is available. The
Defendant does not even tell the court who
the forensic expert is who
he instructed. The fact of the matter is that the signed suretyship
was a condition precedent
to the granting of the loan which
loan agreement the Defendants do not dispute. The Defendant also
admits that the amount of R860,
000 was advanced it could never
have been advanced if the second and third Defendants had not signed
the deeds of suretyship.
I accordingly find that this defence has no
merit and falls to be rejected.
[17]
The last defence raised is the invalidity of the Royalty
agreement. The Defendant persists with this view as a defence
notwithstanding, the finding of the full bench. The Second
Defendant says in his affidavit and it was so argued by his Counsel
in this application that the decision of the Full Bench will be
appealed. There is no mention when the appeal will be launched
and by
whom. The defendant's Counsel does not say that he also acts for
Silverstars in the matter against Business Partners. The
court is not
told what sort of interest the Defendants have in that matter. The
Defendants only became aware of the
judgment of
the full bench two months after it had been handed down,
which clearly shows their lack of interest.
[18]
I hold the view that all the defences raised by the Defendants are
not
bona
fide
and fail to comply with the
provisions of Rule 32 (3). In
OOS RANDSE BANTOESAKE
ADMINISTRASIERAAD
v SANTAM
VERSEKERINGSMAATSKAPPY
BPK EN
ANDERE (2)
1978
(1) SA
164
(W)
at
171
it was
stated that not a great deal is required of a defendant but that he
must lay enough before court to persuade it that he has
genuine
desire and intention of adducing at the trial evidence of facts which
if true would constitute a valid defence.
[19]
What is laid before this court is unsubstantiated findings by an
actuary as well as promises of the forensic expert reports.
It is
clear that the Defendants have been buying time since October 2014 in
order to delay the inevitable outcome. I accordingly
dismiss the
defences raised and hereby grant summary judgment in terms of the
draft order attached hereto marked "X".
Dated
at Pretoria on the ...17... day of August 2015.
________________________
MAKUME
A.M.
(JUDGE
OF THE HIGH COURT)
Date
of hearing:
3 August 2015
Date
of Judgments:
20 August 2015
Counsel
for Plaintiff:
Adv Riley
Instructed
by:
Strydom Britz Mohulatsi Inc
266 Sprite Avenue
Faerie Glen Pretoria
Tel: 012 365 1883
Ref: WNOLTE/TJVR/DL 37665
Counsel
for Defendants:
Adv
Ciller
Instituted
by:
Jacques Van der Merwe Attorney
176 Oliver Street
Broklyn Pretoria
Tel: (012) 346-3420
Ref: J VD MERWE/
pvN97/2014
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
ON
20/8/2015
BEFORE
HONOURABLE
JUDGE
MAKUME
Case
No:48567/2014
In
the matter between:
BUSINESS
PARTNERS
LIMITED PLAINTIFF
(Reg
no : 1981/00091 8/06)
and
NT
MAKHUBELE ENTERPRISES
CC 1
st
DEFENDANT
(Reg
No: 2001 /008243/23)
NATHANIEL
TSAKANE
MAKHUBELE 2
nd
DEFENDANT
(ID
no: [….....])
HITEKANI
FAST FOODS
CC 3
rd
DEFENDANT
(Reg
No: 1999/051085/23)
DRAFT
ORDER
SUMMARY
JUDGMENT
is hereby granted in favour of the
PLAINTIFF against:
A:
THE
DEFENDANTS,
JOINTLY
AND
SEVERALLY,
IN SOLIDUM
WITH
EACH OTHER
THE
ONE
TO
PAY,
THE
OTHER
TO
BE
ABSOLVED, FOR:
1.
Payment of the sum of
R314 398.88,
together with interest
thereon at the rate of
103
per annum, calculated daily and
compounded monthly in arrears as
aforesaid,
calculated from
25 May 2014
to date of payment,
both days inclusive;
2.
Payment of the sum of
R 175 983.46,
together with further
interest thereon at the rate of
103
per annum, calculated
daily and compounded monthly in arrears as aforesaid, calculated from
25 May 2014
to date of payment, both days inclusive;
3.
Costs of suite to be taxed on an attorney & client scale;
B:
THE SECOND DEFENDANT
FOR:
5.
An order declaring the following immovable property specially
executable in favour of the Plaintiff:
ERF
1838 PROTEA NORTH TOWNSHIP
REGISTRATION
DIVISION l.Q, PROVINCE OF GAUTENG
MEASURING:
345 (THREE HUNDRED AND FIVE FIVE) SQUARE METRES
Held
by Deed Transfer T48187/2000
6.
An order that the Registrar be authorized and directed to issue a
writ of execution - immovables - against the hypothecated property
above in accordance with the terms of any judgment
granted as sought per the prayers herein;
___________________________________
THE
REGISTRAR OF THE HIGH COURT
STRYDOM
BRITZ MOHULATSI INC. (362)
REF.:
W.
NOLTE
/TJVR/DL37665