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2015
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[2015] ZAKZDHC 15
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Tiefenthaler Attorneys v Kleinhans (9018/13, 4325/13) [2015] ZAKZDHC 15 (24 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBA
N
CASE
NO. 9018/13
4325/13
In
the matter between:
TIEFENTHALER
ATTORNEYS
............................................................................................
Plaintiff
and
PIETER
KLEINHANS
..........................................................................................................
Defendant
JUDGMENT
Delivered:
24 February 2015
BALTON
J
[1]
This is an application in which the plaintiff seeks summary judgment
against the defendant in an amount of R1 034 750.81.
[2]
On 23 December 2010 the plaintiff and Pieter Kleinhans CC, trading as
Project and Development Management (PDM) represented by
the defendant
entered into an agreement in terms of which the plaintiff would
render professional legal services to PDM against
payment for such
services.
[3]
The defendant signed the agreement and bound himself as surety
and co-principal debtor in favour of the plaintiff for
and on behalf
of PDM in respect of due performance by PDM of its obligations to
make payment to the plaintiff.
[1]
[4]
The defendant renounced the benefit excussion, division,
non-numerate
pecuaniae
and
all other benefits to which he may according to law avail himself,
the meaning of which benefits and consequences of which renunciation
the defendant declared himself to be fully cognisant.
[2]
[5]
On 15 August 2013 the plaintiff instituted proceedings against PDM
for payment of R1 034 750.81.
[6]
The matter was undefended and on 26 February 2014 default judgment
was granted against PDM in favour of the plaintiff.
[7]
The plaintiff then instituted action against the defendant resulting
in the application for summary judgment. In the opposing
affidavit the defendant raised the following defences:
7.1
Non-compliance with rule 18(6) of the Uniform Rules of Court in that
the summons is defective.
7.2
The plaintiff has failed to:
(i)
plead material terms of the quantum and attach the statement of
account upon which it relies;
(ii)
make any formal written demand to the defendant; and
(iii)
comply with the various provisions of the
National Credit Act 34 of
2005
.
7.3
The claim has prescribed as it arose in September 2010 and the
summons was issued on 8 April 2014.
[8]
Ms Singh, who appeared on behalf of the defendant, was unable to
substantiate any of the defences raised.
[9]
The judgment was granted against PDM on 26 February 2014 and to date
no application for rescission has been made against that
judgment.
The judgment confirmed the liability of PDM, the principal debtor in
respect of the original agreement.
[10]
In
JANS
v NEDCOR BANK LIMITED
[3]
Scott
JA
held
that:
Sureties
do not assume the obligation of others against their wills, but with
their free consent. Once having done so they
cannot expect to
be entitled simply to disabuse their minds of the fortunes of the
principal debtor’s liability and then
require the law to
protect them against their ignorance. If prescription in favour
of the principal debtor is delayed or
interrupted without their
knowledge, the generally have themselves to blame.
…
The
very existence of the debt is therefore dependent upon the existence
of the suretyship while the object and function of the
latter is, of
course, to ensure proper payment to the former.
[11]
In
MULLER
& OTHERS v BOTSWANA DEVELOPMENT CORPORATION LTD,
[4]
Mpati JA
held
that:
The
general rule relating to sureties is that a surety may rely on any
defence which is open to the principal debtor, provided such
defence
arises upon the obligation (one in rem) and not from some personal
privilege granted to the debtor (a defence in personam).
[12]
The default judgment has not been rescinded and remains final.
The defendant accordingly does not have a defence in rem
against the
principal debt of the principal debtor.
[13]
Further, none of the defences raised by the defendant is available to
the principal debtor and is accordingly without merit
and unavailable
to the defendant.
[14]
The following order is made:-
Summary
judgement is granted against the defendant in favour of the plaintiff
for:
a)
Payment of the sum of R1 034 750.81;
b)
Interest on the aforesaid amount at the
rate of 15.5% per annum
a tempore morae;
and
c)
Cost of the suit.
_____________________
BALTON
J
Appearances:
Date
of Hearing : 13 November 2014
Date
of Judgment: February 2015
Counsel
for the Applicant: Van Tonder S.C.
Instructed
by: Tiefenthaler Attorneys
C/o
Mariam Cassim & Associates
Counsel
for the Respondents : Adv. SJ Linscott
Instructed
by: Schoerie Sewgoolam Inc
[1]
Clause
7, page 21 of the pleadings
[2]
Clause 8, page 21 of the pleadings
[3]
2003(6)
SA 646 (SCA) at 661 G to 662 B
[4]
2003(1)
SA 651 (SCA) at 655 para 6