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[2013] ZAGPPHC 278
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Radiosource Africa CC v Thompson (1077/2013) [2013] ZAGPPHC 278 (2 October 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER:1077/2013
DATE:02/10/2013
In
the matter between : -
RADIOSOURCE
AFRICA
CC
...........................................................
Applicant
/ Plaintiff
and
CATHERINE
HELEN THOMPSON
.........................................
Respondent
/ Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN AJ
[1]
The applicant (herein after referred to as "plaintiff) prays for
summary judgment against the respondent (herein after
referred to as
"defendant") for the payment of an amount of R 357 682, 25,
with interests and costs.
[2]
The relief is claimed consequent upon a written Deed of Surety signed
by the defendant on 25 July (no year is mentioned in the
written
deed), in favour of the plaintiff ("the creditor").
[1]
In terms of the suretyship agreement, the defendant bound herself as
surety and co-principal debtor with Industrial Lifting
Instrumentation & Pump Supplies ("the debtor") for "the
due fulfillment of any obligations now or hereinafter
of the debtor
to the creditor and the due and punctual payment of the debtor of all
monies which are now or may at any time hereinafter
become owing by
the debtor to the creditor from whatsoever cause howsoever arising
and which without derogating from the generality
of the foregoing,
shall include any claim acquired by the creditor by cession."
[2]
Upon receipt of the summons, the defendant duly entered appearance to
defend the claim, which resulted in the plaintiff, being
of the view
that the defendant does not have a bona fide defence to the claim and
entered appearance solely to delay the plaintiffs
claim, launching
the present application.
ISSUES
COMMON CAUSE:
[3]
Prior to dealing with the defendant's defence to the claim of the
plaintiff, it is necessary to state the facts that are common
cause
between the parties:
i)
the debtor entered into two credit agreements with the plaintiff
which agreements are referred to in the papers as "the
First
Credit Agreement” and "the Current Agreement" (herein
after collectively referred to as "the agreement");
ii)
the terms of the agreement were inter alia that:
a)
the plaintiff would supply goods to the debtor at the latter's
special instance and request;
b)
the debtor agreed to pay all invoices within 30 days from date of
statement;
iii)
that plaintiff did supply goods and issued invoices to the debtor,
but the debtor has failed to make payment timeously or at
all;
iv)
consequently and on 30 November 2012, the debtor was indebted to the
plaintiff in the amount of R 357 682, 25;
v)
the debtor has been placed under provisional winding-up and remains
indebted to the plaintiff in the amount claimed;
vi)
the defendant did enter into the Deed of Surety relied upon by the
plaintiff in its particulars of claim.
DEFENDANT'S
DEFENCE:
[6]
The defendant relies on two defences:
i)
she was in an unequal bargaining position when she signed the Deed of
Surety; and
ii)
she did not intend to bind herseif as co-principle debtor for the
past debts of the debtor.
FACTS:
[7]
The defendant stated the following in the answering affidavit in
support of
the
defences:
"5.1
The operating of the business of the principle debtor solely depends
on goods provided and services rendered by the applicant.
5.2
The principle debtor was dependant on the products supplied and
services rendered by the applicant,
5.3
As a result of the aforementioned, and in the event that I did not
sign the deed of surety, the applicant would not have made
available
the goods and services to the principle debtor, I was therefore in an
unequal bargaining position.
5.4
The deed of surety contained all standard terms and conditions in
favour of the applicant. I was simply not in a position to
negotiate
the terms of the deed of surety and had to consent thereto without
reference to an attorney.
5.5
When signing the deed of surety, it was never my intention to bind
myself as co-principle debtor for past debts incurred by
the
principle debtor.
5.6
I bonded myself as surety for future debts to be incurred and not any
past debts."
and
"6.
When signing the deed of surety / was not aware that I was binding
myself as co principle debtor for past debts incurred
by the
principle debtor. I therefore feel that upon signing the deed of
surety I was under a misrepresentation and was not in a
position to
bargain."
UNEQUAL
BARGAINING POSITION:
[8]
The aforesaid paragraphs contain the totality of the evidence relied
upon by the defendant in support of the defences raised
by her.
[9]The
question that immediately arises on the facts supra, is to which
terms in the deed of surety the defendant would not have
agreed. The
defendant should, furthermore, at least explain why she deemed the
offensive terms oppressive and/or unfair.
[10]
The defendant chose not to disclose these important facts that forms
the very core of her defence based on unequal bargaining
position.
[11]
It is clear that the defendant was not unwilling to bound herself as
co- principle debtor, her only complaint is the fact that
she was not
in a position to negotiate the terms of the deed of surety.
[12]
The well known test formulated in Breitenbach v Fiat S. A. (Edms) Bpk
1976 (2) SA 226
T 2t 228 C-E should be applied to the facts supra, to
wit:
the
word 'fully1 should not be given its literal meaning in Rule 32
(3),
and that no more is called for than this: that the statement of
material facts be sufficiently full to persuade the Court that
what
the defendant has alleged, if it is proved at the trial} will
constitute a defence to the plaintiff's claim. What I would
add,
however, is that if the defence is averred in a manner which appears
in all the circumstances to be needlessly bald, vague
or sketchy,
that will constitute material for the Court to consider in relation
to the requirements of bona tides."
[13]
The defence of unequal bargaining power is in essence a
constitutional challenge to contractual terms. The approach to be
followed in such instances were succinctly summarised by Ngcobo J in
Napier v Barkhuizen
[2007] ZACC 5
;
2007 (5) SA 323
CC at para [30]:
"In
my view the proper approach to the constitutional challenges to
contractual terms is to determine whether the term challenged
is
contrary to public policy as evidenced by the constitutional values,,
in particular, those found in the Bill of Rights. This
approach
leaves space for the doctrine of pacta sunt servanda to operate, but
at the same time allow courts to decline to enforce
contractual terms
that are in conflict with the constitutional values even though the
parties may have consented to them. …"
[14]
Without being informed which term/s of the deed of surety is contrary
to constitutional values, I am simply not in a position
to find that
the defendant has established sufficient facts to disclose a bona
fide defence based on unequal bargaining power.
MISREPRESENTATION:
[15]This
defence is based on the allegation that the defendant never intended
to bind herself as co-principle debtor for past debts
of the debtor
and that she was not aware, when signing the surety, that she was
binding herself as such.
[16]
The consequences of appending one's signature to a document, was
explained by Hoexter JA in Jurgens and others v Volkskas Bank
[1992] ZASCA 152
;
1993
(1) SA 214
A at 220 E-F:
"The
function of a signature is to signify that the writing to which it
pertains accords with the intention of the signatory.
It conveys an
attestation by the person signing of his approval and authority for
what is contained in the document; and that it
emanates from him."
[14]
If the signatory was, however, misled by the person to whom the
written document is presented, as to the true contents and
legal
implications of the document, the signatory will not be bound to the
terms thereof. [See: Tesoriero v Bhyjo investments Share
Block (Pty)
Ltd
2000 (1) SA 167
W; Prins v ABSA Bank Ltd
1998 (3) SA 904
C]
[15]
The defendant does not disclose any facts to support the notion that
she was misled by plaintiff as to the terms contained
in the deed of
surety. She merely states that she did not intent to agree to a term
and/or that she was unaware that the term was
contained in the
surety.
[16]
The specific portion of the deed of surety, the defendant alleges she
was unaware of, appears earlier in this judgment. The
portion dealing
with past debts is not inconspicuous. It appears in the introductory
portion of the deed in the same type print
as the remainder of the
paragraph. The fact that the defendant most probably did not study
the document carefully, is not a defence
in law.
[17]
The facts alleged by the defendant in support of this defence is
similarly bald, vague and sketchy and does not disclose a
bona fide
defence..
[18]
In the premises, the plaintiff is entitled to summary judgment.
ORDER:
I
make the following order:
Judgment
is granted against the defendant for:
1.
Payment of the amount of R 357 682, 25;
2.
Interest on the aforesaid amount at the rate of 2% per month from 1
December 2012 to date of payment;
3.
Costs of suit on the attorney and client scale.
N
Janse van Nieuwenhuizen
Acting
Judge of the North Gauteng High Court