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
>>
2012
>>
[2012] ZAGPPHC 8
|
|
Slip Knot Investments 777 (Pty) Ltd v New Century Homes (Pty) Ltd and Others (49040/2010) [2012] ZAGPPHC 8 (10 January 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 49040/2010
Date:10/01/2012
In
the matter between:
SLIP
KNOT INVESTMENTS 777 (PTY)
LTD
...........................................................
APPLICANT
and
NEW
CENTURY HOMES (PTY)
LTD
...........................................................
1st
RESPONDENT
DAWID
CORNELIUS
MAREE
.....................................................................
2nd
RESPONDENT
BAREND
GABRIEL
MEYER
.........................................................................
3rd
RESPONDENT
JUDGMENT
HIEMSTRA
AJ
[1]
The applicant seeks a money judgment for the amount of R6 993 213.61
together with interest against the second and third respondents,
based on a deed of suretyship in terms of which they bound themselves
jointly and severally with the first respondent as sureties
and
co-principal debtors for the due and punctual payment of a total
amount of R13 million to be lent and advanced by the applicant
to the
first respondent in terms of a loan agreement between the applicant
and the first respondent, which loan agreement had been
entered into
simultaneously with the deed of suretyship.
[2]
On 9 November 2011 judgment was granted against the first respondent
by agreement between the parties for the said amount. Mr
J.C.
Viljoen, appearing on behalf of the respondents, said that the first
respondent intends to apply for rescission of this judgment.
In view
thereof that the judgment was granted by agreement, it is difficult
to conceive of any grounds upon which the judgment
could be
rescinded. Mr Viljoen has not suggested any.
[3]
Despite this judgment, Mr Viljoen argued vigorously that the second
and third respondents are not liable because the applicant
had failed
to make out a case against the first respondent. However, the
liability of the first respondent has manifestly been
established,
and I shall have no regard to the submissions to the effect that the
first respondent, as principal debtor, is not
liable. I shall
therefore only concern myself with the defences raised by the second
and third respondents against their liability
in terms of the deed of
suretyship.
[4]
In terms of clause 3.7 of the deed of suretyship, the amount of
indebtedness of the debtor (the first respondent) to the creditor
(the applicant) at any time shall be determined and proved by a
certificate signed by any one of the creditor's authorised
signatories,
whose appointment, qualification and authority need not
be proved. Such a certificate has been issued and is attached to the
founding
affidavit. The judgment against the first respondent was
based on the certificate.
[5]
Mr Viljoen submitted that the suretyship does not comply with the
provisions of s 6 of the General Law Amendment Act, 50 of
1956. It
reads as follows:
"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 or an aval under the laws relating negotiable instruments."
[6]
I fail to understand this submission. There are two essential
elements that must be embodied in the agreement:
1.
the identity of the creditor, the surety and the principal debtor;
and
2.
the identification of the principal debt.
[7]
The first of the two essential elements appears from the suretyship
agreement.
[8]
Although the amount of the principal debt is not contained in the
agreement, it may be established by supplementary extrinsic
evidence,
such as a certificate as
stipulated
in clause 3.7.
1
[9]
I therefore find that the deed of suretyship complies with s 6 of Act
50 of 1956.
[10]
Mr Viljoen lastly argued that there is a discrepancy between letters
of demand addressed to the first respondent and the certificate
regarding the amount of indebtedness. Apart from the fact that the
alleged discrepancy is clearly as a result of interest calculations,
the indebtedness appears unequivocally from the judgment against the
first respondent of 9 November 2011.
[11]
In terms of the judgment of 9 November 2011 and the loan agreement,
the first respondent is liable to pay interest on the principal
debt
as from the payment date, being 28 March 2008, at the rate of 1.5
percent per week.
In
the result I make the following order:
1.
The second and third respondents are ordered, jointly and severally
with
the first respondent to pay to the applicant:
1.1
the amount of R6 993 213.61;
1.2
Interest of the amount of R6 993 213.61 at the rate of 1.5 percent
per week from 28 March 2008 to the date of payment.
2.
The second and third respondents are ordered to pay the costs of the
application a scale as between an attorney and client.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
heard:1 December 2011
Date
of judgment: 14 December 2011
Counsel
for the applicant:Adv. J.F. Pretorius
Attorney
for the applicant: Sim & Botsi Attorneys, c/o Gross Papadopuio &
Ass.
Counsel
for the respondents: Adv. J.C. Viljoen
Attorney
for the respondents: Le Roux & Du Plessis Attorneys
1
Sapirstein
v Anglo African Shipping Co (SA) Ltd
1978
(4) SA 1
(A) and the cases cited therein;
Du
Toii v Barclays Nasionale Bank Beperk
1985
(1) SA 553
(A); Harms,
Amler's
Precedents of Pleading
7
th
ed at p 367