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[2013] ZAKZDHC 8
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ABSA Bank Ltd v Arbee (3117/2011) [2013] ZAKZDHC 8 (15 March 2013)
IN THE KWAZULU NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE
NO. 3117/2011
In
the matter between:
ABSA
BANK LIMITED
............................................................
PLAINTIFF/APPLICANT
and
JUNAID
ARBEE
..............................................................
DEFENDANT/RESPONDENT
J U D G M E N T
NDLOVU J
Factual background
[1] In this matter the
plaintiff, a commercial bank, seeks judgment against the defendant
for payment of the sum of R1 203 759,24
plus interest and
costs on attorney and client scale. The judgment is sought in terms
of Rule 31(1)(c) of the Uniform Rules of
this Court. The defendant
objects to the granting of judgment mainly on the ground that he
signed the consent to judgment papers
under duress.
[2] The defendant is the
sole member of a close corporation known as Imvusa Trading 1203 CC
(“Imvusa”) which, on or
about 23 December 2009 concluded
a loan agreement with the plaintiff bank in terms of which the
plaintiff lent to Imvusa the sum
of R1 336 300,00 against
registration of a mortgage bond in favour of the plaintiff as
security for the loan. Further
details in relation to the mortgage
bond are not relevant for the present purpose.
[3] On or about 30
October 2009 the defendant, in terms of a written deed of suretyship,
interposed and bound himself as surety
and co-principal debtor (with
Imvusa being the principal debtor) for the repayment on demand of all
or any such sum or sums of
money which Imvusa might then owe or from
time to time be indebted to the plaintiff. The plaintiff duly
accepted the defendant’s
suretyship.
[4] Imvusa defaulted in
its repayments in terms of the loan agreement and this culminated in
the plaintiff instituting legal action
against Imvusa and,
subsequently, liquidation proceedings. On or about 9 March 2011 the
plaintiff instituted an action against
the defendant in the latter’s
capacity as surety for Imvusa for recovery of the debt. Once the
defendant entered an appearance
to defend the action, the plaintiff
filed an application for summary judgment, which was opposed by the
defendant. It is, however,
apparent that the summary judgment process
was not pursued by the plaintiff and that the defendant eventually
filed his plea on
or about 6 December 2011. This was done on the
defendant’s behalf by his then attorneys of record, Abbas Latib
and Company.
[5] In his plea the
defendant raised two preliminary objections to the summons by way of
special pleas. He pleaded the existence
of, firstly, a
pactum de
non petendo
and, secondly, novation of the plaintiff’s
cause of action, both of which he alleged were subsequently agreed
upon between
the plaintiff, duly represented by its attorneys of
record and himself, appearing in person. In terms of this subsequent
agreement
the plaintiff was precluded from proceeding with the
action. In pleading over, the defendant merely raised a bare denial
of the
allegations contained in the particulars of claim and put the
plaintiff to the proof thereof. Notably, this defence was the same
as
the one which the defendant had raised in his affidavit opposing the
granting of summary judgment against him.
[6] It is common cause
that on 7 June 2012 the plaintiff’s attorneys held a meeting
with the defendant at their offices in
Morningside, Durban, with a
view to exploring the way forward in terms of a possible settlement.
As to the question whether the
meeting was requested by the defendant
or the plaintiff’s attorneys, the parties were not in
agreement. However, nothing
seems to turn on that aspect of the
matter.
[7] Indeed, it is also
common cause that at the meeting of 7 June 2012 certain agreements
were reached between the parties. On the
same day the plaintiff’s
attorneys addressed and emailed a letter (“the settlement
letter”) marked “without
prejudice” to Imvusa
confirming the discussion and agreements aforesaid. The settlement
letter read thus:
“
Dear Sirs,
Absa Bank Limited/Imvusa Trading 1203
CC and Junaid Arbee
The above matter refers.
We confirm that our client (the Absa
Bank) has agreed to afford you (the debtors) an opportunity of
resolving the liquidation application
instituted against Imvusa
Trading 1203 CC hereinafter referred to as Imvusa under Durban High
Court Case No. 4551/2012 and the
action instituted against Dr Junaid
Arbee under Durban High Court Case No. 3117/2011, on the following
terms and conditions, namely:
You both acknowledge that Imvusa and
Dr Arbee are jointly and severally currently indebted to the
applicant in the sum of R1 435 888,50
together with
interest thereon at the rate of 9.35% per annum from 7 February 2011
to date of payment, calculated daily, compounded
monthly, both days
inclusive, and costs on an attorney and client scale.
You both, jointly and severally,
undertake to settle the arrears owing in respect of joint account
number 7010075115 as follows
–
Payment of the sum of R100 000,00
on or before the close of business on 12 June 2012;
Payment of the surplus resultant
from the transfer of the immovable property described as Erf 2284,
Umhlanga Rocks (Ext 21);
Notwithstanding the contents of
paragraphs 2.1 and 2.2 above, the arrears must be settled in full,
on or before the close of
business on 29 June 2012.
Imvusa further agrees to resume its
normal monthly bond repayments, in accordance with the terms of the
mortgage bond loan agreement,
with immediate effect.
Dr Arbee agrees to furnish Absa
Bank’s attorneys, Johnston and Partners, with a consent to
judgment in terms of the prayers
sought in Absa Bank’s summons
in respect of Durban High Court Case No. 3117/2011.
Should any one of the payments not be
made on due date, the Absa Bank shall have the right, without
notice, to proceed with the
liquidation of Imvusa on an unopposed
basis. In this regard, the Absa Bank requires you to sign the
attached consent order.
We are accepting this offer purely as
an indulgence. In the circumstances our client is not novating its
claim against you and
its claim is neither extinguished nor reduced.
Kindly confirm that this is acceptable
by signing, in the space provided for below and (sic) the attached
documentation and returning
same, by the close of business on 8 June
2012.
Yours faithfully
JOHNSTON & PARTNERS
Duly authorised for and on behalf of
IMVUSA TRADING 1203 CC :
__Signed
_
DR JUNAID ARBEE: ______
Signed
___
”
[8] The attached
documentation referred to in the last paragraph of the settlement
letter apparently included an unsigned consent
to judgment (referred
to in item 4 of the settlement letter) which the defendant was
required to sign and return to the plaintiff’s
offices by the
close of business on 8 June 2012. However, it is common cause that
the defendant signed the consent letter at Tongaat
on 11 June 2012.
In terms thereof the defendant consented to judgment, in favour of
the plaintiff, as follows:
“
(a) Payment
of the amount of R1 435 888,50;
(b) Interest on the amount of
R1 435 888,50 at the rate of 9.35% per annum from 7
February 2011 to date of payment;
(c) Costs of suit on an attorney and
client scale;
(d) Further and/or alternative
relief.”
[9] However, it was
common cause that the defendant subsequently paid to the plaintiff
the sum of R213 000,00 as part payment
towards the debt, which
then reduced the amount owing to that extent. The arrangement between
the parties was that the plaintiff
would lodge the consent to
judgment, in terms of Rule 31(1)(c), only in the event of the
defendant defaulting with his payments
as agreed in terms of the
settlement letter. Hence, it was upon the defendant’s failure
to honour this agreement that the
plaintiff lodged the present
application, in terms of Rule 31(1)(c). However, the Rule 31(1)(c)
application process did not follow
the usual route of being
considered by a Judge in chambers. This was occasioned by the fact
that the defendant opposed the application.
[10] In his affidavit
opposing the Rule 31(1)(c) application the defendant made certain
serious allegations against the plaintiff’s
attorney which,
according to the defendant, constituted duress having been unduly
exerted upon him to sign the consent to judgment.
It is apposite to
refer to the relevant paragraphs of the defendant’s affidavit
in this regard:
“
4. I admit
that my signatures appear on the consent to judgment, however, I deny
that the consent to judgment was freely and voluntarily
signed by me.
I was at the time of signature represented by attorney Abbas Latib
and Company.
5. I had delivered my plea in the
action under case number 3117/2011 on or about the 6
th
December 2011, and in this regard I fully associate myself with the
facts contained in the plea, a copy of which I am unable to
presently
annex to these papers but which I shall ensure will be made available
to the above Honourable Court at the time that
this matter is heard
on an opposed basis. I place on record that aside from my denial of
the allegations contained in the Plaintiff’s
Particulars of
Claim, I had raised two special pleas, namely, that the Plaintiff and
I had concluded an agreement, which constituted
a
pactum de non
petendo
, alternatively was a novation of the Plaintiff’s
original cause of action. The nature of these defences had been set
forth
in my answering affidavit in the summary judgment application.
6. The Plaintiff and I had been
engaged in extensive negotiations in this matter and in or about the
7
th
June 2012, the Plaintiff’s attorney made certain
proposals to me in respect of a liquidation matter, which is related
to
this matter and invited me to settle the matter directly with
them. At the time I was under extreme financial pressure in the light
of the other matter. I was not convinced of the merits of the
Plaintiff’s suggestions and I called upon the offices of the
Plaintiff’s attorneys in order to personally discuss the terms
of settlement.
7.1 The Plaintiff’s attorney
represented to me in a bullish manner that there was no merit in my
defence set forth in my plea
and that it was only a matter of time
within which the Plaintiff would be able to obtain judgment against
me and that the Plaintiff
would immediately execute against me
personally, which would cause me untold prejudice and embarrassment
as I am aside from a businessman
also a practicing medical
practitioner, which will result me in my creditworthiness being
compromised.
7.2 The Plaintiff’s attorney
demanded that I sign certain documents relating to a consent to
judgment on the misrepresentation
that there was no merit to my
defences and on a threat that the Plaintiff will proceed to obtain an
order for the liquidation of
a close corporation of which I am a
member and will proceed to seek judgment and execute against me
immediately with the express
intention to cause me financial and
professional embarrassment in the event that I proceed to defend the
present action.
7.3 The Plaintiff’s attorney
intentionally misrepresented to me that the Plaintiff will be lenient
on the enforcement of the
consent to judgment, in the event that I
co-operated and signed the consent to judgment documents.
7.4 The Plaintiff’s attorney
refused to permit me to consult with my attorneys prior to making any
decision and informed me
that the offer was only acceptable for a
limited period.
7.5 I now verily believe that the
Plaintiff’s attorney would have been trying to avoid the
ventilation of the action at trial
as my defence to the trial in the
main related to an agreement I had reached with the Plaintiff’s
attorney, which no doubt
would have put the Plaintiff’s
attorney in an invidious position.
8. At the time that I had signed the
documents in respect of the consent to judgment, I did so purely as a
consequence of the Plaintiff’s
attorney’s unlawful
threats to financially persecute my close corporation and I in the
event that I refused to co-operate
and elected to proceed further
with the trial action. I respectfully submit that I had, in the
reasonable and
bona fide
belief that the Plaintiff’s
attorney would in fact carry out their threats and for the purposes
of maintaining the integrity
of my reputation and creditworthiness
credit (sic) and the solvency of my close corporation, capitulated to
the Plaintiff’s
attorney’s unlawful demands and appended
my signatures to the documents presented to me by the Plaintiff’s
attorney,
which was signed at the offices of the Plaintiff’s
attorney of record. But for the Plaintiff’s attorney’s
unlawful
threats, I would not have signed the consent to judgment.
9. In the circumstances, I
respectfully submit that I did not sign the consent to judgment
freely and voluntarily and that in doing
so, I had under duress and
pressure being unlawfully placed upon me by the Plaintiff’s
attorney. I accordingly submit that
the consent to judgment is
void
and the Plaintiff cannot seek to rely upon it to obtain judgment
against me. By virtue of the unlawful conduct of the Plaintiff’s
legal representatives, I seek that the application be dismissed with
costs on a punitive scale.”
The Issue
[11] Indeed, the issue
for determination is whether the defendant signed the consent to
judgment as a result of any duress, in the
form of unlawful threats,
having been exerted upon him by the plaintiff’s attorney.
Submissions on behalf
of the parties
[12] Counsel appearing
for the defendant, Mr
Dheoduth
, submitted that it was
impossible to determine on the papers the question of whether the
defendant signed the consent to judgment
freely and voluntarily or
under duress without the parties having an opportunity to adduce oral
evidence and to cross-examine the
deponents to the various
affidavits. He proposed, on that basis, that the matter be referred
for the hearing of oral evidence and
agreed that the material issue
to be referred was a narrow one, namely, whether the defendant signed
the consent to judgment freely
and voluntarily or under duress,
subject to such other issues as might be determined by the Court or
as agreed upon by the parties.
Counsel conceded that in this regard
the defendant bears the
onus
of proof.
[13] Mr
Dheoduth
submitted that it was clear from the defendant’s opposing
affidavit that he went to the plaintiff’s offices on 7 June
2012 at the invitation of the plaintiff’s attorney to negotiate
a settlement of the matter directly with them. Counsel also
noted
that, as at that time, the defendant was legally represented by his
erstwhile attorneys of record Abbas Latib and Company
and that, for
that reason, it was improper of the defendant to have negotiated with
the plaintiff’s attorneys without the
knowledge and assistance
of his attorneys. He pointed out, however, that in practice it was
not uncommon to encounter clients,
especially the educated and
sophisticated ones, challenging the advice and guidance given to them
by their lawyers and legal advisers
and then deciding to handle
certain aspects of their case themselves. In any event, he asked the
Court, on the question of the
alleged duress, to determine the
subjective mind of the defendant at the time when he signed the
consent to judgment whether he
did so freely and voluntarily or not.
He pointed out that in his plea the defendant had raised two special
pleas which he had sought
to rely upon at the trial. However, the
plaintiff’s attorney misrepresented to him that his defence had
no merit and that
it was only a matter of time before the plaintiff
would obtain judgment against him.
[14] Ms
Mills
, for
the plaintiff, submitted that there was no material and genuine
dispute of fact in this matter warranting it to be referred
for oral
evidence. She argued that even if the defendant’s allegations
were true, they would not establish duress. The threats
which the
defendant alleged were made by the plaintiff’s attorney were
simply that judgment would be entered and executed
against the
defendant and that the close corporation would be liquidated, if the
matter was not settled. These actions would not
have constituted
unlawful threats, but would only have indicated the inevitable result
of the existing litigation. Ms
Mills
also referred to the
correspondence which was exchanged between the plaintiff’s
attorneys and the current defendant’s
attorneys of record
(Rughbeer and Associates) during which not a single occasion was it
ever mentioned by the defendant’s
attorneys that the defendant
was forced to sign the consent to judgment. Counsel further
reiterated that the
onus
was on the defendant to prove that he
signed the consent to judgment under duress and that in determining
the issue, the Court
was enjoined to apply the objective test, and
not the subjective test as contended by counsel for the defendant.
The Law and Evaluation
[15] Rule 31(1) provides,
in part, as follows:
“
(a) …
[A] defendant may at any time confess in whole or in part the claim
contained in the summons.
(b) Such confession shall be signed by
the defendant personally and his signature shall either be witnessed
by an attorney acting
for him, not being the attorney acting for the
plaintiff, or be verified by affidavit.
(c) Such confession shall then be
furnished to the plaintiff, whereupon the plaintiff may apply in
writing through the registrar
to a judge for judgment according to
such confession.”
[16] The word ‘judge’
referred to in Rule 31(1)(c) is defined in Rule 1 as ‘a judge
sitting otherwise than in
open court’. (See also Erasmus
Superior Court Practice
at B1-197). It follows, accordingly,
that the application envisaged in Rule 31(1)(c) was intended
ordinarily to be made only before
a judge in chambers and not in open
court. The application is made ‘through the registrar’
and there is no requirement
that the other party, i.e. the confessing
party or the defendant, should be served with the papers. However, it
seems clear to
me that the defendant or any person affected by the
granting of judgment under Rule 31(1) is not precluded from
challenging the
process, either before or after the judgment has been
granted, on any ground recognised by law, including fraud, duress or
justus
error. Once such challenge is made the matter is then
dealt with in open court in one way or the other, depending on the
status
of the case when the challenge was made.
[17] The terms of the
consent to judgment must be unambiguous and unconditional in relation
to the confession on which the judgment
is sought. Otherwise the
Judge dealing with the matter will refuse to grant judgment in terms
of Rule 31(1)(c). In
Moshal Gevisser (Trademarket) Ltd v Midlands
Paraffin Co
1977 (1) SA 64
(N) the Court (per Hefer J) observed
(at 69H-70A):
“
[T]he only
difference is that the Judge who deals with the application in terms
of the Rule, being aware (from the terms of the
consent itself) of
the arrangement that it cannot be utilized for the purpose of
obtaining judgment unless the defendant has failed
to comply with its
terms, may require to be satisfied by the plaintiff that the
defendant has indeed failed to do so, and may require
notice to the
defendant before disposing of the matter. But if and when judgment is
eventually granted, it is granted by reason
of the consent; the
defendant not having complied with the terms of the arrangement
between the parties, it is the consent which
is employed in order to
obtain judgment.”
[18] In
Moshal
Gevisser,
the defendant who had signed a consent to judgment,
pleaded that he had done so in error and challenged the granting of
judgment
in terms of Rule 31(1), thus necessitating the matter to be
argued in open court.
The learned Judge
recalled the decision in
George v
Fairmead (Pty) Ltd
1958 (2) SA 465
(A) where, in formulating the principles underlying the defence of
justus
error,
the Appellate Division (per Fagan CJ) stated, in part, as follows (at
472):
"When
a man is asked to put his signature to a document he cannot fail to
realise that he is called upon to signify, by doing
so, his assent to
whatever words appear above his signature."
[19] After referring to
various authorities and analysing the case before it the Court (in
Moshal Gevisser
) held, among other things, as follows:
“
The
signing of such a consent by a defendant is a formal step in the
proceedings and to allow him to withdraw it any stage for
no rhyme
or reason, would make a mockery of Rule 31(1)” (at 68E);
The reason to withdraw
such the consent must be good and valid. (at 68G-H);
Where the consent is a
result of a settlement between the parties it may not be regarded as
a unilateral act because it is a record
of the settlement terms. (at
69A).
Where a signatory to the
consent to judgment sought to avoid judgment based on that consent
the matter must be approached
along the same
lines and judged according to the same principles as in instances
where a party sought to resile from a contract
on the ground of
justus error
or mistake (at 69B-C).
A single occasion of
accepting late payment of instalment cannot constitute the waiver on
the part of the plaintiff. (70B-C).
[20] In
National and
Overseas Distributors Corporation (Pty) Ltd v Potato Board
1958
(2) SA 473
(A) (followed in
Moshal Gevisse
r) the Appellate
Division (per Schreiner JA) stated (at 479G-H):
“
Our law
allows a party to set up his own mistake in certain circumstances in
order to escape liability under a contract into which
he has entered.
But where the other party has not made any misrepresentation and has
not appreciated at the time of acceptance
that his offer was being
accepted under a misapprehension, the scope for a defence of
unilateral mistake is very narrow, if it
exists at all. At least the
mistake (error) would have to be reasonable (
justus
)
and it would have to be pleaded. In the present case the plea makes
no mention of mistake and there is no basis in the evidence
for a
contention that the mistake was reasonable.”
[21] In the present case
I am satisfied that there is no material dispute of fact that is such
as to warrant that the case be referred
for oral evidence. It would
be appropriate, it seems to me, to apply the ‘robust common
sense approach’ and deal with
the matter on the papers.
(
Soffiantini v Mould
1956 (4) SA 150
(E) at 154G – H).
In any event, as will become apparent in due course, even if the
defendant’s factual allegations
(i.e. what he alleges the
plaintiff’s attorney did to him before he signed the consent to
judgment) are to be accepted as
true they would still not constitute
a successful defence for the defendant.
[22] I am also satisfied,
in the light of
Moshal Gevisser
that in an instance, such as
the present, where a signatory to the consent to judgment seeks to
avoid judgment under Rule 31(1)(c)
on the ground of duress the matter
must be approached
along the same lines and
judged according to the same principles as in instances where a party
seeks to resile from a contract on
the ground of
justus
error
or mistake. This includes the
application of an objective test to determine whether the defendant
party signed the consent to judgment
under duress or not.
[23] To my mind, there
are several observations which seem to militate against the
conclusion that the defendant signed the consent
to judgment under
duress in the manner pleaded by him. I propose to refer to these
observations presently.
[24] The defendant was a
well-educated and sophisticated person – being a qualified
medical practitioner and apparently a
once successful businessman. At
all relevant and material times he was legally represented either by
his erstwhile attorneys of
record Abbas Latib and Company or his
current attorneys of record, Rughbeer and Associates. He was
therefore in a good position
to have understood fully and clearly all
his rights in relation to the case lodged against him by the
plaintiff. However, despite
being so legally represented, he went
behind his attorney’s back and decided to deal with the
plaintiff’s attorneys
directly, which culminated in him
proceeding to have a meeting with the plaintiff’s attorneys at
their offices on 7 June
2012.
[25] The defendant’s
allegation that he “
capitulated to the plaintiff’s
attorney’s unlawful demands and appended
(his)
signatures
to the documents presented to
(him)
by the plaintiff’s
attorney, which was signed at the offices of the plaintiff’s
attorney of record”
(paragraph 8 of the opposing affidavit)
is factually untrue. The consent to judgment was signed by the
defendant in Tongaat (which
corresponded with his
domicillium
citandi et executandi
, being 1 Watsonia Drive, Tongaat) and his
affidavit verifying his signature (in terms of Rule 31(1)(b)) was
also attested to by
him and commissioned at the (SAPS) police station
in Tongaat on 11 June 2012. Therefore, the defendant’s
allegation that
this happened at the offices of the plaintiff’s
attorneys constitutes, in my view, a recent fabrication on the part
of the
defendant. This seems to be a feeble attempt on his part to
cast a false depiction that he had found himself like somewhat
‘detained
in this strange office’ when he was coerced by
the plaintiff’s attorney to sign the consent to judgment.
Unfortunately,
he had seemingly forgotten, or perhaps overlooked, the
fact that the documents signed by him reflected the place where that
was
done.
[26] It is beyond one’s
imagination how, if the defendant was coerced into signing the
consent to judgment at the offices
of the plaintiff’s attorneys
on 7 June 2012, he was unable to communicate the alleged incident of
duress to his attorneys
of record for the entire four day period
since then until he actually signed the documents on the 11
th
.
This period accorded him ample time but he failed to do anything
about it.
[27] There was a further
period of some four months from the time that the defendant signed
the consent to judgment papers (on 11
June 2012) until the day when
he deposed to his opposing affidavit in which he disclosed for the
first time his allegation of duress
(on 9 October 2012). He did not
explain why he did not report the alleged duress to his attorneys of
record. Significantly, even
in the opposing affidavit he only
mentioned the duress but failed to explain the reason or reasons why
such a serious incident
was not reported to his attorneys or, for
that matter, any other responsible person or authority.
[28] I am satisfied that
the defendant’s attorneys were uninformed about the allegation
of duress until on or about 9 October
2012 when the defendant raised
the issue for the first time in the opposing affidavit. The fact of
his attorneys being ignorant
about the allegation is further
demonstrable from the correspondence which they exchanged with the
plaintiff’s attorneys,
which all invariably dealt with
proposals and counter-proposals in relation to the issue of how the
defendant would make repayments
to the plaintiff. Two of such letters
(both from the defendant’s attorneys of record) are dated 17
June 2012, apparently
mistaken for 17 July 2012 (annexure “H”)
and 26 July 2012 (annexure “K”) are referred to hereunder
to serve
as examples.
[28.1]
Letter annexure
“H”
“
ATTENTION :
JOHNSTON AND PARTNERS
PER FAX : (031) 303 6086
RE : ABSA BANK/JUNAID ARBEE –
CASE NUMBER 3117/2011
The above refers.
We confirm that we have now been
instructed by Junaid Arbee in the above matter and confirm our
instructions are as follows:
1. Our client will make payment of
R80 000,00 by 11:00am tomorrow (18 July 2012)
2. Payment of the balance of the
arrear outstanding amount of R80 000 would be paid on or by 31
July 2012.
Further, our instructions are that in
light of the fact that the matter between Absa Bank and Imvusa
Trading under Case No. 4551/2012
was adjourned
sine die
on the
6 July 2012, could your office confirm by close of business on the
18
th
July 2012 that proceedings in this matter would
automatically be stayed.
We submit with respect that there is
no prejudice to your client in accepting the above proposal. Our
client is amenable to resolving
this matter amicably. We await your
response herein.
Thanking you.
ARVIN RHUGBEER
RHUGBEER & ASSOCIATES”
[28.2]
Letter annexure
“K”
“
RE : ABSA
BANK/JUNAID ARBEE – CASE NUMBER 3117/2011
The above and the telecom between our
Mr Rhugbeer and your Ms Ward on the 26
th
July 2012 refers.
We confirm the following:
Our client intends making payment of
R80 000,00;
The balance would be paid by close of
business on the 31
st
July 2012;
Kindly advise if your clients are
amenable to stay the consent to judgment upon receipt of proof of
payment of R80 000,00.
Kindly advise if your client is
amenable to same.”
[29] In my view, there is
no better proof, in the light of the above-mentioned letters, that
the defendant’s attorneys had
absolutely no clue or idea that
the defendant was all the time hatching on some kind of technical
defence in the form of alleged
duress against the plaintiff’s
claim. There is very little doubt, if at all, that if the attorneys
had known about this defence
prior to their exchange of the
correspondence aforesaid with the plaintiff’s attorneys they
would definitely have raised
it then.
[30] In any event, having
considered the nature of the alleged threats I am also inclined to
agree with Ms
Mills
that even if the threats were actually
made, they would not have constituted unlawful threats at all.
Threats of this nature by
a judgment creditor to its judgment debtor
are not uncommon and they are perfectly legitimate and lawful to
make. They are essentially
part of a lawful demand to pay. In
Shepstone v Shepstone
1974 (1) SA 411
(D) the Court (per James
JP) stated as follows (at 413 H):
“
In my view a
threat to take lawful action in the Courts cannot, in these
circumstances, be regarded as
contra
bonos mores
.
Cf.
Jans
Rautenbach Produksies (Edms) Bpk v Wijima
1970
(4) SA 31
(T) at p 33”.
[31] For all the above
reasons, I am constrained to reject the defendant’s defence of
duress and find that he in fact signed
the consent to judgment freely
and voluntarily, without any duress. When he put his signature on the
consent to judgment he could
not have failed to realise that he was
being “called upon to signify, by doing so, his assent to
whatever words appear above
his signature”. (See
George v
Fairmead
, above). He is, therefore, bound by the terms of the
consent which he signed. It was his own free decision to side-step
his attorneys
of record and went to negotiate a settlement with the
plaintiff’s attorneys who had, in the circumstances, no option
but
to deal with him directly. In this regard he has only himself to
blame.
Order
[32] In the result, I
grant judgment in terms of Rule 31(1)(c) in favour of the plaintiff
as against the defendant in terms of the
plaintiff’s amended
order prayed (see page 42 of the indexed papers), as follows:
Payment of the sum of
R1 203 759,24;
Interest on the
aforesaid sum at the rate of 8,85% per annum, calculated from 8
September 2012 to date of payment;
Costs of suit on the
scale as between attorney and client.
_____________________
Application heard on : 15
February 2013
Counsel for the plaintiff
: Ms LM MIlls
Instructed by : Johnston
& Partners
Counsel for the defendant
: Mr NN Dheoduth
Instructed by : Rhugbeer
& Associates
Judgment handed down on:
15 March 2013