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[2014] ZAGPPHC 196
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Refine Underwriting Managers (Pty) Ltd v Van Zyl and Others (45827/2009) [2014] ZAGPPHC 196 (14 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
N0:45827/2009
DATE:
14 MARCH 2014
In the matter
between:
REFINE
UNDERWRITING MANAGERS (PTY) LTD
...........................
Applicant
(Plaintiff in the
main action )
And
JACOBUS HENRICUS
VAN ZYL
.................................................
First
Respondent
(First Defendant
in the main action)
MARIA ELIZABETH
Van Zyl
....................................................
Second
Respondent
(Second Defendant
in the main action)
YELLOW STAR
PROPERTIES 160 CC
........................................
Third
Respondent
(Third Defendant
in the main action)
JUDGMENT
MURPHYJ
1. The applicant
issued summons against the three respondents in July 2009 in which it
claims payment of R200 000 on a cause of
action founded on a
suretyship agreement. The applicant alleges that the respondents
bound themselves personally as sureties and
co-principal debtors
together with Nocom Noord Wes BK t/a Madiba Motors (“Nocom”)
in respect of certain debts arising
between Nocom and the applicant.
2. The present
application is one made in terms of rule 28(4) in which the applicant
seeks leave to amend its particulars of claim
in various respects.
3. The suit between
the parties is at an advanced stage. Discovery is completed and the
matter has been set down for trial and postponed
on three prior
occasions. Most recently, the matter was set down for trial on 11
February 2014. However, because of the pending
application for the
amendment of the particulars of claim the matter was not ripe for
trial and at the instance of the plaintiff
the trial has been
postponed to a future date.
4. Paragraphs 5-13
of the particulars of claim are the subject of this application. They
read as follows:
“5. On or
about 09 March 2006, the Plaintiff entered into a written fuel
guarantee (“the guarantee”) for and on
behalf of Nocom
Noord Wes BK t/a Madiba Motors, in favour of Total South Africa
(Proprietary) Limited, in terms of which:
5.1 The Plaintiff
would guarantee on behalf of Nocom Noord Wes BK t/a Madiba Motors
fuel deliveries up to a maximum of R200 000.00.
6. In the event that
the Plaintiff was called upon to make payment in terms of the
guarantee, Nocom Noord Wes BK t/a Madiba Motors
would repay the
amount to the Plaintiff, failing which the Defendants, as sureties
would make such payment.
7. A suspensive
condition of the guarantee was that the Defendants enter into a
suretyship agreement in terms of which they bound
themselves
personally as sureties and co-principal debtors together with Nocom
Noord Wes Bk t/a Madiba Motors, the one paying the
other to be
absolved, in favour of the Plaintiff, in the event that Total South
Africa (Proprietary) Limited exercising its rights
in terms of the
guarantee. Copies of the guarantee letter and the fuel guarantee are
attached marked annexure “A1”
and “A2”
respectively.
8. On or about 13
January 2006 the Plaintiff and Defendants entered into a suretyship
agreement. A copy of the signed suretyship
agreement is attached
marked annexure “B”.
9. In terms of the
suretyship, the Defendants:
9.1 Waived all
benefits of the legal exceptions of the division and excussion and
acknowledged themselves to be fully acquainted
with the meaning and
effect thereof;
9.2 Acknowledged
that their liability in terms of the suretyship agreement should not
be affected by any concession or accommodation
which may have been
made to the Defendants by the Plaintiff or its successors in title.
10. Total South
Africa (Proprietary) Limited exercised its rights and called in the
guarantee for payment of the amount of R200
000.00. (Two Hundred
Thousand Rand), which amount was duly paid by the Plaintiff on or
about 28 February 2007.
11. Despite demand
Nocom Noord Wes BK t/a Madiba Motors failed and/or refused to repay
to the Plaintiff the amount of R200 000.00
(Two Hundred Thousand
Rand), and in the premises, the Defendants are liable to the
Plaintiff in the amount of R200 000.00.
12. Despite demand,
the Defendants have failed to pay the amount of R200 000.00 or any
part thereof.
13. Prior to
commencing these proceedings, the Defendants were given notice in
terms of section 129, read with
Section 130
of the
National Credit
Act No 34 of 2005
, which notice was sent per registered mail to the
Defendants. Ten (10) business days have elapsed since the delivery of
the aforesaid
notice and the Defendants have failed to respond to the
notice. Copies of the notice, together with proof of postage in
annexed
as annexure “C1”, “C2” and “C3”.
The Defendants have further been in default for a period exceeding
20
(twenty) business days prior hereto.”
5. On 13 November
2009 the applicant applied for and obtained summary judgment in the
amount of R200 000 against the first and second
respondents (the
first and second defendants in the action), the one paying the other
to be absolved. The third respondent (the
third defendant in the
action) successfully resisted summary judgment on the ground that the
applicant failed to comply with sections
129 and 130 of the National
Credit Act 34 of 2005 (“the NCA”).
6. The applicant
delivered its notice of intention to amend in August 2013 setting out
the amendments it wishes to effect to its
particulars of claim, which
it believes are necessary to clarify the contractual relationship of
the parties. It seeks to amend
the particulars in seven respects.
7. The first
amendment sought by the applicant relates to paragraph 5 of the
particulars of claim. The applicant wants to delete
the paragraph in
its entirety and to replace it with the following:
“5. On or
about 09 March 2006 and pursuant to the plaintiff concluding a Fuel
Retail Guarantee Insurance Policy (“RGIP”)
with,
alternatively on behalf of, Nocom Noord Wes BK t/a Madiba Motors
(“Nocom”), in favour of Total South Africa (Proprietary)
Limited (“Total SA”), in order to secure payment of the
fuel supplies delivered to Nocom by Total SA, the plaintiff
issued a
written fuel guarantee letter (“the guarantee”)
containing the following salient terms:
5.1 the plaintiff
bound the guarantor as credit insurer (being Absa Insurance Company)
for the repayment of the amount or any part
thereof due and payable
by Nocom (the retailer) but unpaid to Total SA, provided that the
total liability of the guarantor would
be limited in all to the sum
of R200 000.00 (Two Hundred Thousand Rands);
5.2 the guarantor
agreed that any amount recoverable from the guarantor would be
payable by the guarantor within 5 (five) business
days on receipt of
a written demand addressed to the guarantor. Such notice would be
accompanied by a certificate signed by the
company secretary, any
legal advisor, the credit manager or group legal and credit manager
of the company certifying the amount
due and payable together with a
detailed calculation thereof, which certificate shall be prima facie
proof of the claim.
A copy of the
guarantee and the RGIP are annexed hereto marked “A1” and
“A2” respectively.”
8. The second
proposed amendment seeks the deletion of paragraph 7 of the
particulars of claim and its replacement with the following:
“It is a
suspensive condition of the RGIP that the guarantee would only be
issued upon receipt by the plaintiff, on behalf
of the guarantor, or
a surety signed by the members, directors, proprietors or trustees of
the retailer, in respect of whom the
guarantee is to be issued, and
who undertake to reimburse the guarantor for any payment made under
the guarantee.”
9. The third
proposed amendment seeks the insertion of the italicised words in
paragraph 8 of the particulars of claim as set out
below, so that in
its amended form it would read:
“8. On or
about 13 January 2006, as required and in fulfillment of the terms of
the guarantee, the Plaintiff and Defendants
entered into a suretyship
agreement. A copy of the signed suretyship is attached marked
Annexure B.”
10. The fourth
proposed amendment involves the insertion of two new paragraphs into
and the re-numbering of paragraph 9 of the particulars
of claim so
that it will read as follows:
“9. In terms
of the suretyship, the Defendants:
9.1 bound themselves
as sureties for and co-principal debtors in soliduim with Nocom and
its successor in title for the due and
punctual fulfillment by the
dealer of all its obligation arising out of and in terms of the RGIP
in the event of the supplier (Total
SA) exercising its rights in
terms of the guarantee;
9.2 waived all
benefits of the legal exceptions of the division and excussion and
acknowledged themselves to be fully acquainted
with the meaning and
effect thereof;
9.3 acknowledged
that their liability in terms of the suretyship agreement should not
be affected by any concession or accommodation
which may have been
made to the Defendants by the Plaintiff or its successors in title;
and
9.4 the operators,
and/or the dealer undertook to pay all costs (including costs as
between attorney and own client) incurred by
the plaintiff in
taking steps against
the operators or the dealer to enforce its rights under the
suretyship.”
11. The fifth
proposed amendment aims to introduce an additional paragraph after
paragraph 10 of the particulars with a consequent
re¬numbering of
the existing paragraphs 11, 12 and 13 as paragraphs 12, 13, and 14.
The proposed new paragraph 11 reads:
“11. The
payment referred to above of R200 000,00 by the plaintiff, was as a
result of the receipt of a certificate of indebtedness
of Nocom dated
13 February 2007.”
12. The sixth
proposed amendment seeks to delete the existing paragraph 13 in its
entirety and to replace it with a new paragraph
14 which reads:
“14. The
provisions of the
National Credit Act No. 34 of 2005
do not apply to
the RGIP, and consequently do not apply to the suretyship as between
the plaintiff and the defendants, alternatively
the RGIP is exempt
from the application of the
National Credit Act because
of the annual
turnover of Nocom at the time of the conclusion of the RGIP exceeding
the threshold stipulated in the
National Credit Act.”
15. The
seventh
proposed amendment wishes to replace prayer (c) of the relief sought
with the following prayer:
“(c) Costs of
this action on the attorney and own client scale.”
16. The third
respondent has delivered a notice of objection in terms of
rule 28(2)
and (3) setting out various grounds of objection.
17. The first
objection is that the applicant failed to annex Annexures A1 and A2
referred to in the first amendment seeking to
amend paragraph 5 of
the particulars of claim. The objection is without merit. The
documents evidencing the underlying agreement
were referred to in the
unamended paragraph 7 of the particulars of claim and were annexed to
them. They are headed “Fuel
Guarantee” and “Fuel
Retail Guarantee Policy Document” respectively and are
identified as such in the proposed
amendment to paragraph 5. There is
accordingly no substance to the objection that the third respondent
will be embarrassed on this
ground.
18. The second
objection to the proposed amendment of paragraph 5 is more
substantive. The third respondent contends that the terms
of the
alleged agreement in the new paragraph 5 are “new and
different” from the original terms and cause of action
as set
out in the original paragraphs 5 to 9. The claim based on the new
terms, it argues, may have prescribed and any claim or
cause of
action based on it will therefore be bad in law.
19. I am not
persuaded that the amendments introduce a different right of action
which may have prescribed. The terms of agreement
relied upon in the
proposed amendments are essentially the same as those pleaded in the
original particulars of claim as read with
the guarantee and the
policy. Paragraph 6 of the existing particulars of claim read with
the proposed paragraph 5.1 and the existing
paragraph 10 leave no
doubt that the right of action under the primary agreement remains
the same. A summons which fails to disclose
a cause of action for
want of an averment will interrupt the running of prescription
provided that the right of action sought to
be enforced in the
summons subsequent to its amendment is recognizable as the same or
substantially the same right of action as
that disclosed in the
original summons. If it is the same or substantially the same, as in
this case, the running of prescription
will have been interrupted and
it will not matter that the effect of the amendment is to expand the
claim - Firstrand Bank v Nedbank
(Swaziland) Limited 2004 (6) 317
(SCA) at 320 I -321D. There is accordingly no merit in the second
objection.
20. The third
respondent has objected (the third objection) to the deletion of the
original paragraph 13 and its substitution by
the proposed paragraph
14. According to the third respondent, in the original paragraph the
applicant effectively acknowledged
and accepted that it had a legal
duty to give Nocom and its sureties notice in terms of
section 129
of
the NCA and attached proof that it had done so. The substitution of
the existing paragraph 13 with the new paragraph 14, the
third
respondent submitted, amounts to the withdrawal of a common cause
fact or an admission and the applicant is not entitled
to
do that unless it
proffers an explanation under oath by way of affidavit, which it has
not done. The effect of the amendment, it
further submitted, would be
to deprive the third respondent of a defence based on
section 129
of
the NCA and hence the amendment if allowed would be prejudicial.
21. The third
objection is unfounded for two reasons. Firstly, the allegation in
paragraph 13 of the existing particulars of claim
is exactly that: an
allegation. It is not a factual admission of any kind. The amendment
does not aim to withdraw an admission
of a common cause fact. In the
circumstances the applicant is not obliged to tender any explanation
under oath as to why “the
fact” is being withdrawn.
Secondly, the third respondent will not be prejudiced in its defence.
It remains free to raise
any defence under
section 129
of the NCA
which it may have and can do so after evidence has been adduced in
relation to the annual turnover of Nocom.
22. In paragraphs
1.3 and 1.10 of the objection the third respondent raises a fourth
objection, namely that the amended particulars
will be excipiable. It
contends that the allegations in the new paragraph 5.2 are vague and
embarrassing or lacking of sufficient
averments to sustain the
alleged cause of action because:
i) the copy of the
written demand to the guarantor referred to therein is not annexed.
ii) no proof of
payment by the guarantor as alleged in the first sentence in
paragraph 5.2 is annexed;
iii) a copy of the
certificate signed by the company secretary/legal advisor/credit
manager referred to in the second sentence in
paragraph 5.2 is also
not annexed; and
iv) a copy of the
detailed calculation referred to in the said second sentence is also
not annexed.
23. In so far as the
complaint relates to the absence of documents, the basis of such
objection falls away in view of such documents
having already been
discovered as items 10, 12 and 14 of the applicant’s discovery.
There is accordingly no prejudice in
their not being attached to the
particulars of claim at this late stage of the process.
24. The third
respondent sought to expand upon the objection in argument by arguing
that the guarantee agreement required the applicant
to meet certain
conditions or pre-conditions which had to be fulfilled or performed
before it could make any claim as against Nocam
and the sureties,
(for instance that the guarantor had paid the amount recoverable from
it within 5 days of a written demand addressed
to the guarantor by
Total SA, and that the demand would be accompanied by a certificate
certifying the amount due and a detailed
calculation of that amount)
and that the amended particulars do not make any factual allegations
of compliance and hence were excipiable
on that ground. This
complaint too is unfounded. Firstly, this ground of objection was not
raised in the notice of objection in
terms of
rule 28(3).
Secondly, I
doubt whether these allegations need to be pleaded as part of the
facta probanda.
25. With regard to
the amendment of the prayer for costs, there is no need for the
applicant to set out any evidentiary basis for
the amendment, as
suggested by the first respondent. Whether attorney and client costs
should be awarded will be determined by
the evidence at trial and the
discretion of the court. There can be no prejudice if the applicant
gives notice of its intention
to seek such an order at this stage.
26. As for the costs
of this application, even though an amendment is an indulgence to the
applicant, given the nature and timing
of the application for
amendment and the nature and extent of the opposition, justice
requires that in this instance costs should
follow success in the
result.
27. I make the
following orders:
i) The applicant is
granted leave to amend its particulars in the manner set out in its
application in terms of
Rule 28
(4).
ii) The third
respondent is ordered to pay the costs of the application.
JR MURPHY JUDGE
OF THE HIGH COURT
Representation
for the applicant:
Counsel: Adv N
Ali
Instructed by
Attorneys: Norton Rose Fulbright
Representation
for 3rd respondent:
Counsel: Adv DD
Mosoma
Instructed by
Attorneys: Denga Inc.
Date Heard: 24
February 2014