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[2014] ZAFSHC 58
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JNJ Coffins CC and Others v CG Casket & Coffin Manufactures (3807/2013) [2014] ZAFSHC 58 (24 April 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 3807/2013
In
the matter between:
JNJ
COFFINS
CC
1
st
Applicant
JACQUES
VAN
RENSBURG
2
nd
Applicant
NADINE
VAN
RENSBURG
3
rd
Applicant
and
CG
CASKET & COFFIN
MANUFACTURERS
Respondent
HEARD
ON:
14 FEBRUARY 2014
JUDGMENT
BY:
MOTLOUNG, AJ
DELIVERED
ON:
24 APRIL 2014
[1]
This is an exception to the plaintiff’s particulars of claim.
The excipient is the second defendant in an action
instituted by the
plaintiff against him and two other defendants. Plaintiff is
cited as respondent herein and the second
defendant as excipient.
The parties will be referred to herein as in the action.
[2]
The plaintiff is CG Casket & Coffin Manufacturers, a close
corporation incorporated as such in terms of the law of South
Africa,
with principal place of business at 31 Morewood Road, Hammersdale,
KwaZulu-Natal.
[3]
The first defendant is JNJ Coffins CC, a close corporation
incorporated as such within the laws of South Africa, with principal
place of business as 2 Laer Street, Heilbron, Free State, with
registered address at 33 Eerste Street, Heilbron, Free State.
[4]
The second defendant is Jacques van Rensburg, an adult male business
person, with principal place of business at 2 Laer Street,
Heilbron.
[5]
The third defendant is Nadine van Rensburg, an adult female business
woman married in community of property to the second defendant
and
residing at 2 Laer Street, Heilbron.
[6]
The plaintiff sues the first defendant for damages for breach of
contract based on the written Credit Application Agreement.
The
claim is for R2 150 126,22. The second and third
defendants stood surety for the first defendant and are sued
jointly
and severally, the one paying the other to be absolved.
[7]
The second defendant excepts to the particulars of claim on the basis
that they lack averments necessary to sustain an action.
They
do not comply with Rule 18(6) of the Uniform Rules on pleadings
generally.
[8]
The pleading to which the exception is taken, is found on page 6,
paragraph 5 of the particulars of claim, which is set out
as
follows:-
“
On
or about 31 October 2011, and at Heilbron, Free State, the plaintiff
and 1
st
defendant entered into a written Credit Application Agreement (the
‘Credit Agreement’) with the 1
st
defendant for a business account and credit facility in respect of
the 1
st
defendant. The Credit Agreement is annexed hereto marked ‘A’.”
[9]
On page 17 of the indexed documents is Annexure “A”,
titled “Credit Application for Business Account”.
[10]
On page 18 is a document purporting to be a deed of surityship and
forms part of Annexure “A”.
[11]
The exception was taken in the following terms:
“
GELIEWE
KENNIS TE NEEM
dat Applikante van
voorneme is om op ‘n datum en tyd gereël te word met die
Griffier van die Agbare Hof eksepsie aan
te teken teen Respondent se
besonderhede van vordering en wel op die basis dat dit bewerings mis
wat nodig isom ‘n skuldoorsaak
uit te maak en/of te staaf en
wel op die volgende gronde:
1.
Respondent
beweer dat ‘n skriftelike kredietooreenkoms (Aanhangsel ‘A’)
met Eerste Applikant gesluit is en dat
die ooreenkoms die geheel van
die ooreenkoms tussen Respondent en Eerste Applikant verteenwoordig.
2.
Verder beweer
Respondent dat Eerste Applikant kontrakbreuk gepleeg het aangesien
Eerste Applikant versuim het om Respondent betyds
soos ooreengekom te
betaal en dat die versnellingsklousules in die kredietaansoek dus in
werking getree het.
3.
Nêrens
beweer Respondent dat hy die kredietaansoek aanvaar het en dat hy die
aanvaarding en terme daarvan aan Eerste Applikant
gekommunikeer het
nie.
4.
Klousule 11.1
van die kredietaansoek maak uitdruklik daarvoor voorsiening dat
Respondent ‘n sogenaamde ‘confirmation
letter’ aan
Eerste Applikant sal stuur nadat Respondent die kredietaansoek
‘approve’ (goedgekeur) het en dat
die betalingsterme
daarin uiteengesit sal word.
5.
Die
skriftelike ‘letter of approval’ met die betalingsterme
daarin uiteengesit, is wesenlik om ‘n skuldoorsaak
op die
kredietaansoek uit te maak en moes aangeheg word by die besonderhede
van vordering (hofreël 18(6)) en die terme moes
gepleit word wat
Respondent versuim het om te doen.
6.
Die borgakte
(‘C’) waarop die Respondent steun vir sy vordering teen
Tweede en Derde Applikante is wesenlik defektief
en strydig met die
gebiedende bepalings van die Wet deurdat dit nie aantoon wie die
skuldeiser is nie maar aantoon dat Tweede en
Derde Applikante hulle
verbind ‘jointly and severally in favour of each of the
companies listed in Schedule A hereto, which
schedule shall be
regarded as specifically incorporated herein (hereinafter called the
creditors) as sureties for and co-principal
debtors in solidum with
JNJ Coffins CC.’
7.
Die
maatskappye gelys in skedule A word nie geïdentifiseer nie en
word skedule A ook nie aangeheg nie.
8.
Boonop verbind
Tweede en Derde Applikante hulle blykens die borgskap as skuldenaars
saam met die Respondent, welke onbestaanbaar
is vir ‘n geldige
borgstelling.
Namens
Eerste, Tweede en Derde Applikante sal derhalwe versoek word dat die
Respondent se besonderhede van vordering met koste deurgehaal
word,
alternatiewelik dat verlof aan Respondent verleen word om sy stukke
te wysig binne 14 dae na uitspraak by gebreke waaraan
verlof aan
Applikante verleen word om die Agbare Hof op dieselfde stukke te
nader vir deurhaling van die Respondent se besonderhede
van
vordering. Applikante sal versoek dat Respondent gelas word om
die koste van die eksepsie te betaal.”
[12]
Prima facie
it appears to the court that the exception is well taken on the
following basis:-
[13]
Advocate De Wet argued that paragraph 5of the particulars of claim
does not comply with Rule 18(6) of the Uniform Rules.
The Rule
provides that:-
“
A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral and when, where and by whom
it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the pleading shall be annexed
to the pleading.”
[14]
On page 17 of the indexed papers is the purported contract, which is
titled “Credit Application for Business Account”.
This is accompanied by a purported “Suretyship” signed by
the excipient for a sum of R2,5 million.
[15]
At paragraph 11 of annexure “A” titled payment, it lists
terms of payment of the amount owing. Counsel argued
that
clause 11.1 thereof states that
“
that
payment is made to be according to the payment terms contained in the
company’s confirmation of credit letter, which
the customer
shall receive on approval of any credit facility by the company”.
[16]
Clause 22.1 of annexure “A” provides that:
“
This
contract represents the entire agreement between the company and the
customer and shall govern all future contractual relationships
between the company and the customer and shall be applicable to all
debts which the customer may owe to the company prior to the
customer’s signature hereto.”
[17]
He further argues that the Suretyship, annexure “C”, has
not been signed by the plaintiff and does not amount to
proper
suretyship and therefore of no force and effect.
Section
6 of the General Law Amendment Act 50 of 1956 provides that:
“
No
contract of suretyship entered into after the commencement of this
Act, shall be valid, unless the terms thereof are embodied
in a
written document signed 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.”
[18]
Annexure “C” states that the second defendant hereby
binds themselves, jointly and severally in favour of each
of the
companies listed in schedule “A” hereto. Mr De Wet
argues that no such companies can be identified in
schedule “A”.
[19]
For the above submission he relies on
Fourlamel
(Pty) Ltd v Maddison
1977 (1) SA
333
(A), where Miller JA, writing the majority judgments, said on
page 338:
“
Accordingly,
although the two events may occur at the same time, a contract of
suretyship does not come into being until an agreement
has been
manifested by both parties. In the light of the section such
manifestation of an agreement would have to relate to terms
embodied
in writing which formally includes all the essential terms.”
[20]
Advocate Hattingh, for the respondent, argued that if evidence can be
led which can disclose a cause of action or defence alleged
in a
pleading, that particular pleading is not excipiable. A
pleading is only excipiable on the basis that no possible evidence
led on the pleadings can disclose a cause of action or defence.
He
relies on
McKelvey v Cowan NO
1980 (4) SA 525
(Z) where the court held that, it
is a first principle in matters of exception that, if evidence can be
led which can disclose
a cause of action alleged in the pleading,
that particular pleading is not excipiable. A pleading is only
excipiable on the
basis that no possible evidence led on the pleading
can disclose a cause of action.
Further
in
Vermeulen v Goose Valley
Investments (Pty) Ltd
2001 (3) SA
986
(SCA) at para [14], it was held by the court that, the exception
grounded upon the alleged inadequacy of the description of the
res
vendita
should not have been upheld by
the Court
a quo
.
[21]
He further submitted that the test is whether the trial court could
(not should) reasonably imply the term alleged. The
court
should not look too critically at a pleading unless the excipient can
satisfy the court that there is a real point of law
or real
embarrassment.
He
relies on
Lanificio Varam SA v
Masurel Fils (Pty) Ltd
1952 (4) SA
655
(A) where the court held that a term could be implied in the
contract.
[22]
He submits that the second defendant relies on a particular
interpretation of clauses in the agreement to sustain the contention
that averments are lacking. He submits that the plaintiff
relies on the acceptance of delivery of goods on 30 day credit
terms
and the acquiescence by the defendants. This was the
consummation of the contract under the doctrine of quasi mutual
assent.
In
Pillay and Another v Shaik and Others
2009 (4) SA 74
(SCA) the court held at para [50] that in the absence
of a statute which prescribed writing signed by the parties or their
authorised
representatives as an essential requisite for the creation
of a contractual obligation, an agreement between parties which
satisfied
all the other requirements for contractual validity would
be held not to have given rise to contractual obligations only if
there
was a pre-existing contract between the parties which
prescribed compliance with a formality or formalities before a
binding contract
could come into existence.
[23]
On the issue of suretyship he submits that annexure “C”
merely amplifies what is contained in the Deed of Suretyship
in the
Credit Agreement. Clause 9 of the Deed of Suretyship identifies
in whose favour the surety is made.
[24]
My finding in this matter are as follows:-
(i)
On averments lacking to sustain an action;
The
second defendant’s submission that it does not comply with the
requirement of Rule 18(6) is that paragraph 5 is not a
contract as
set out on the face of the document, but an application for credit.
This hinges on it being approved by the credit
grantor and does not
come into being by meeting of the minds. It is trite law that
to ascertain that a contract has been
reached, there must be an offer
and acceptance of that offer.
See:
Watermeyer v Murray
1911 AD 61
at 70.
[25]
To compound the problem of the respondent, the credit application is
only signed by the second defendant, suggesting that the
plaintiff
did not accept.
Still,
how a credit application can pass for an agreement is not certain.
The argument by the plaintiff that this can be cured
by evidence does
not hold water. The plaintiff pointed to the case of
Pillay
,
supra
, as
answering the issues raised by the second defendant. However,
the facts are distinguishable in that even if the signature
of one
party is not appended, this document will still be an application for
credit, and that it still has to be approved.
It could succeed
or fail for a number of reasons and approval will not be granted as
such. It looks more like the luck of
a draw than parties
agreeing to a set of facts.
I
find that the pleading is excipiable and the principle of quasi
mutual consent is not applicable, more so as it has to be
specifically
pleaded.
[26]
On whether the Deed of Suretyship is valid as set out in the papers,
the second defendant relied on statute or non-compliance
with the
provisions of section 6 of Act 50 of 1956. The plaintiff’s
submission that page 18 paragraph 3 contains the
Deed of Suretyship
is thin. The parties have not been clearly identified. I
find that the pleading is excipiable on
this basis as well.
[27]
In the premises the two exceptions raised by the second defendant as
excipient are upheld.
ORDER
[28]
Consequently the following orders are made:
1.
The two exceptions are upheld with costs.
2.
The plaintiff is given 14 (fourteen) days to amend its papers.
__________________
S.E.
MOTLOUNG, AJ
On behalf of second
defendant
(excipient):
Adv P.J.T. de Wet
Instructed
by:
Symington & De Kok
BLOEMFONTEIN
On
behalf of plaintiff (respondent): Adv C. Hattingh
Instructed
by:
Wessel & Hattingh Inc
PIETERMARITZBURG
c/o
Phatshoane Henney Attorneys
Symington
& De Kok
BLOEMFONTEIN
(Ref.
MV/SJ/WES312/0001)
/spieterse