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
>>
2013
>>
[2013] ZAGPPHC 137
|
|
Moller v Barloworld Equipment, a Division of Barloworld SA (Pty) Ltd t/a the Cat Rental Store and Others (312/11) [2013] ZAGPPHC 137 (31 May 2013)
REPORTABLE
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 312/11
DATE:31/05/2013
In the matter between:
J.J. MOLLER
…..................................................................
Excipient/2nd
Defendant
And
BARLOWORLD EQUIPMENT, A
DIVISION
..................
1st
Respondent/Plaintiff
OF BARLOWORLD SA (Pty) Ltd
t/a THE CAT RENTAL STORE
SILVER FALCON TRADING 510 (PTY)
LTD
...............
2nd Respondent/1st
Defendant
J.A.
NEL
...........................................................................
3rd
Respondent/3rd Defendant
JUDGMENT
RATSHIBVUMO AJ:
1. Background. This is an exception
taken by the second defendant to the plaintiff’s particulars of
claim. In the particulars
of claim the first respondent (herein after
referred to as the plaintiff), claims the amount of R395 099.09 being
the amount owed
to it following a credit application by the the
second respondent (herein referred to as the first defendant). The
plaintiff alleges
in the particulars of claim that the first
defendant represented by Mariaan Wild (Wild), applied for a credit
facility for a plant
equipment hire from it on 14 July 2008. The said
application
1
“thereafter constituted an agreement between the plaintiff and
the first defendant.” Following the plant equipment
hire
referred to above, by the first defendant, the plaintiff issued a
number of invoices to the value of R395 099.09 to the first
defendant
who failed to make payments to the plaintiff. The second defendant’s
liability to the claim derives from the suretyship
agreement
2
signed by him and the third respondent (third defendant) whereby they
bound themselves jointly and severally as sureties and co-principal
debtors in favour of the plaintiff and failure by them to make
payment for the amount owed by the first defendant despite demands
made by the plaintiff.
2. Exception. The second defendant
excepts the plaintiff’s claim as disclosing no cause of action
and bad in law. He further
avers that Annexure C referred to under
footnote 1 above does not comply with the provisions of section 6 of
the General Law Amendment
Act, Act 50 of 1956 (the Act) in that it
does not contain the names or identity of the debtor, that Annexure A
does not contain
a hiring or rental agreement and that it does not
contain any signature other than Wild’s. The plaintiff opposes
the exception.
3. Suretyship Requirements. Section 6
of the Act provides,
Formalities in respect of contracts of
suretyship.—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.
In interpreting the meaning of
“terms” the Appellate Division (as it was known) held
that it includes the identification
of the parties to a contract.
3
In that judgment, Miller JA stated “
[c]
onfining
myself to the word when used in relation to a contract of suretyship,
it is
manifest that, for example,
identification of the principal debt and debtor is not only a
term of the contract but is essential to the
creation of the surety's liability, suretyship
being
an accessory obligation.
”
4
The mere fact that the suretyship agreement does not contain the
identification of the debtor would not render the suretyship
agreement invalid
provided a reference has
been made in the said suretyship agreement to a loan agreement where
the debtor is identifiable
.
5
(
Own Emphasis
) In
so doing, the terms of the contract are incorporated into the
suretyship agreement by such reference.
4. The question is whether it is
possible to identify all the parties to a suretyship agreement
without resorting to extrinsic evidence
in this case. As a general
rule, extrinsic evidence is inadmissible if it is led in order to
cure the defect.
6
Extrinsic evidence remains inadmissible as long as it concerns the
negotiations between the parties prior to execution of a written
agreement or relating to parties consensus. Other than that,
extrinsic evidence is not only admissible, but also essential since
a
written contract was merely an abstraction until it was related, by
evidence, to the
concrete things in the
material world
.
7
The condition however is that there must be a reference in the
suretyship agreement to such loan agreement (or any such relevant
contract) where the terms such as the identification of parties are
clear without extrinsic evidence.
8
5. Issues: I now turn to the relevant
parts of the disputed document purported to be suretyship agreement –
Annexure C. In
a two paged pro forma, under the heading “GENERAL
DEED OF SURETYSHIP AND INDEMNITY” the following was inserted:
(a)
I/We the undersigned, Johannes Jacobus Moller of 26 Oberholzer
Str, Lephalale (b) Jacob Adriaan Nel of 50 Valedoring Str, Owerwatch
do hereby bind myself/ourselves jointly and severally as
surety/sureties and co-Principal Debtor/s unto and in favour of
BARLOWORLD
EQUIPMENT (PTY) LTD or its successors intitle or assigns
(hereinafter referred to as the “Creditor”) in sodium
with
_________________________ herein referred to as the (“Debtor”)
for the due and punctual payment of all amounts of whatever
nature or
and/or performance of any obligation, all of which may now or in
future become owing by the Debtor for any reason whatsoever
(underlined text reflects what was handwritten by a pen). 17 clauses
appear in this document, eight of which are on the first page
and the
rest are on the second page. Page 1 contains one signature at the
bottom next to the words hand-written: “to be completed”
whereas page 2 contains 3 signatures, two under the words “[A]s
surety/sureties:” and one under “[A]s witnesses:”
Page 2 further shows that it was signed at Lephalale on 14 July 2008.
6. As reflected above, the space
provided for the identity of the debtor was left blank in the
purported suretyship agreement (Annexure
C). There is equally no
reference whatsoever to any other agreement that may have been signed
between the creditor and the debtor.
It was argued for the respondent
that Annexure C should not be seen in isolation, but as part of the
same bundle as Annexure A.
Annexure A is a document comprising of 9
pages. As indicated above, it is a credit application by the first
defendant represented
by Wild to the respondent. Only Wild’s
signature appears in this document. The last page with a subheading
‘FOR OFFICE
USE ONLY’ has a number of open slots all of
which were left blank. As a result, from Annexure A, it is not
apparent if the
loan application was approved. It is also not clear
as to how this application can be referred to by the respondent as an
agreement
especially when it contains no signature of the creditor.
No reference is made in this document to the suretyship agreement or
any other contract for that matter. I cannot therefore find any basis
for the argument that Annexure A is part of Annexure C.
7. It follows therefore that the
alleged suretyship agreement does not contain the terms as it’s
required by the Act. It follows
further that it does not make
reference to any other agreement whatsoever. Equally, there is
nothing in Annexure A that suggests
that it is an agreement. It is
also apparent that there is nothing the respondent can do to amend
the particulars of claim so as
to cure the defects therein; hence
there is not even a request for such an amendment.
8. In light of the above, I make the
following order:
The exception by the second
defendant is upheld.
The respondent (plaintiff) is
ordered to pay the costs.
______________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Date Heard: 07 May 2013
Judgment Delivered: 31 May 2013
For the Excipient: Adv. JC Klopper
Instructed by: MP Van Staden
Attorneys
C/O DBM Attorneys
Centurion
For the Respondent: Adv. Z Schoeman
Instructed by: Savage Jooste &
Adams Inc
Pretoria
1
See Annexure A of the plaintiff’s
particulars of claim.
2
See Annexure C of the plaintiff’s
particulars of claim.
3
Fourlamel (PTY) LTD v Maddison
1977 (1) SA 333
(A).
4
Fourlamel (PTY) LTD v Maddison supra at p. 345
5
Industrial Development Corporation of SA (PTY)
LTD v Silver
2003 (1) SA 365
(SCA)
6
Trust Bank van Afrika Bpk v Sullivan
1979 (2) SA 765
(T).
7
Industrial Development Corporation of SA (PTY)
LTD v Silver supra & Sapirstein and Others v Anglo African
Shipping Co (SA)
Ltd
1978 (4) SA 1
(A).
8
Industrial Development Corporation of SA (PTY)
LTD v Silver Supra.