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 1
|
|
Prisma Verpakking Norde (Pty) Ltd v Holtzhausen and Others (43357/10) [2012] ZAGPPHC 1 (3 February 2012)
REPORTABLE
IN THE NORTH
GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER:
43357/10
DATE: 3
February 2012
PRISMA VERPAKKING NORDE
(PTY) LTD
.......................
PLAINTIFF
vs
JAPIE KRUCER HOLTZHAUSEN
…...................................
1
st
DEFENDANT
CATHARINA SUSANNA
HOLTZHAUSEN
….....................
2
nd
DEFENDANT
HEINRICH DUVENHACE
…...............................................
3
rd
DEFENDANT
SUSAN VAN VUUREN
….....................................................
4
th
DEFENDANT
MABUSE J:
INTRODUCTION
JUDGMENT
1. This is an
application for summary judgment. The plaintiff, a company with
limited liability registered in terms of the company
statutes of this
country with its registered address at Third Floor, Newland Centre,
New Street, Paarl, has issued summons against
the defendants jointly
and severally, the one paying and the others to be absolved, for
payment of a sum of R439,321.85, interest
and further ancillary
relief. On 19 October 2011 judgment by default was granted against
the second and fourth defendants for payment
of the said amount plus
interest and costs. Therefore the target of this application for
summary judgment is the third defendant,
an adult business man whose
domicUium citandi et executandi is 18 Jan Smuts Avenue, Parktown,
Johannesburg.
2. The
plaintiff's cause of action arises from a written acknowledgement of
debt signed on 29 October 2009 at Paarl, in the alternative,
Marble
Hall, between the plaintiff at the material time
represented by
one Charles Steenkamp and Tembador which was there and then
represented by the first defendant, an adult businessman
whose chosen
domicilium citandi et executandi was Plot 202A, Wolwekraal, Marble
Hall in Mpumalanga Province and a Deed of Suretyship
signed by the
third defendant at Marble hall on 8 April 2010 and the Plaintiff,
represented by the said Steenkamp at Marble Hall,
at Paarl on 12
April 2010. According to the said acknowledgement of debt a copy
whereof was attached to the plaintiff's summons,
Tembador' full names
are Tembador 136 (Pty) Ltd ("Tembador").
THE FACTS
3. In terms of
the said acknowledgement of debt:
3.1 Tembador
acknowledged itself to be indebted to the plaintiff in the sum of
R1,683,162.15;
3.2 It accepted
liability for interest on the outstanding amount at the prime rate of
Standard Bank Limited, calculated from 1
September 2009 until 29
October 2010;
3.3 It also
accepted liability for interest on the outstanding amount at the
prime lending rate, compounded monthly in arrears,
from 29 October
2010 to date of payment in full;
3.4 It undertook to pay
the outstanding amount owing together with interest thereon by
means of three instalments
as follows:
3.4.1 Payment of
R561,050.00 on or before 6 November 2009;
3.4.2 Payment of
R561,054.00 on or before 6 September 2009; and
3.4.3 Payment of the
outstanding balance plus interest on or before 6 January 2010;
3.5 The full balance of the
principle debt and any interest accrued would immediately become due
and payable at the plaintiff's
option without prior notice from the
Plaintiff should Tembadorfail to pay any instalment on the due date;
3.6 Acceptance by the
plaintiff of any payment made by Tembador after the due date would
not be regarded as nor constitute a derogation
or waiver of the
rights of the plaintiff in terms of the acknowledgement and any
indulgence or relaxation which the plaintiff might
grant would be
without prejudice to the rights of the plaintiff as is specified in
the said acknowledgement of debt.
3.7 Tembador
agreed that the amount of its indebtedness to the plaintiff at any
time should be determined and proved by way of
a certificate signed
by the Financial Director of the plaintiff. Such certificate would be
accepted as prima facie evidence of
such indebtedness and would be
sufficient to empower the plaintiff to bring the application for
summary judgment or an application
for provisional sentence in a
competent court against Tembador for the amount as set out in such
certificate and Tembador accepted
the onus of proving that such
amount did not represent the amount due to the plaintiff.
3.8 Tembador
agreed furthermore to pay the plaintiff or its attorneys on demand
all tracing fees, legal costs on attorney and own
client scale and
collection commissions payable by the plaintiff in respect of any
action or proceedings which might be instituted
against it in terms
of or arising out of its acknowledgement.
4. On 12 April
2010 and at Paarl, in the alternative Marble Hall, the plaintiff,
then represented by one Charl Steenkamp and Tembador,
at the time
represented by the first defendant, entered into a written addendum
to the acknowledgement of debt. In terms of the
aforementioned
addendum,
4.1 the
indulgence granted by the plaintiff in terms of the said addendum
could not be deemed in any way to affect, prejudice or
derogate from
the plaintiff's rights arising from the acknowledgement of debt, nor
could it in any way be regarded as waiver of
any of the plaintiff's
rights thereunder, nor could it be an innovation of the
acknowledgement of debt.
4.2 Tembador undertook to
pay the plaintiff as follows:
4.2.1 an amount of R250
000.00 on or before 30 March 2010;
4.2.2 an amount of R380
000.00 on or before 14 May 2010; and
4.2.3 an amount of R303
000.00 on or before 11 June 2010; and
4.2.4 the outstanding
balance of the capital sum referred to in the acknowledgement of debt
plus interest thereon and calculated
in accordance with the
provisions of the aforementioned acknowledgement of debt on or before
30 June 2010.
5. Tembador failed to make
the payments as stipulated in the aforementioned acknowledgement
of
debt and the addendum thereto and only made the following payments:
5.1
R561,054.00
on
6 November 2009;
5.2 R437.75 on 9 November
2009;
5.3 R100 000.00 on 7
December 2009;
5.4 R100 000.00 on 12
December 2009;
5.5 R250 000.00 on 9 April
2010;
5.6 R200 000.00 on 30
November 2010; and
5.7 R200 000.00 on 3
December 2010.
No further payment from the
said Tembador was ever received since then.
6. Accordingly, the full
balance of the principle debt and accrued interest became due and
payable immediately in terms of clause
7 of the acknowledgement of
debt.
7. As at 1 March 2011
Tembador was indebted to the Plaintiff in the amount of R439 321.85
as was
evident from a certificate
signed by the Financial Director of the Plaintiff annexed to the
plaintiff's summons as
annexure POC3.
7.1 On 8 April 2010 and at
Marble Hall the third defendant, among others, bound himself in
writing as surety and co-principal debtor
in solidum with Tembador
for the due and punctual performance by Tembador of all its
obligations underthe said acknowledgement
of debt. He signed the
suretyship undertaking both as the surety and co-principal debtor.
7.2 According to the said
suretyship, the third defendant bound himself as surety and
co-principal debtor in solidum to the plaintiff
for payment of all
amounts due and payable by Tembador.
7.3 The further terms of
the aforementioned addendum were that the third defendant further
agreed to be liable to the plaintiff
for any legal costs, including
legal expenses, on the attorney-and-client scale incurred by
plaintiff due to Tembador's default
in discharging its obligations to
the plaintiff.
7.4 The third defendant
chose his domicilium citandi et executandi at Plot 202A Wolwekraal,
Marble Hall, Mpumalanga Province. He
agreed furthermore that no
termination, cancellation, limitation or variation of the suretyship
would be of any force or effect
unless it had been agreed to in
writing and signed by the plaintiff.
7.5 The third
defendant renounced the benefits arising from the legal exceptions
ordinis seu excussionis et divisionis et divisionis
and de doubus vel
pluribus reis debedendi and declared that he was fully acquainted
with the meaning and effect thereof and understood
and appreciated
the said exceptions.
7.6 He agreed to the term
that the suretyship agreement comprised the entire agreement between
the plaintiff and him and that the
plaintiff would not be bound by
any undertakings, representations or warrantees not expressly
recorded in it.
8. As Tembador
failed to make payment to the plaintiff in the amount of R439 321.85,
the third
defendant was liable to the
plaintiff in the said amount plus interest reckoned from 1 April
2011.
9. The plaintiff
contends that the National Credit Act No. 34 of 2005 ("the
Act"), is not applicable to the transaction
between it and
Tembador as, firstly, Tembador is a juristic person and, secondly,
the agreement is a large agreement as defined
in s. 4(1 )(b)
alternatively in s. 4(i)(a)(i) read together with s. 9(4) of the Act.
10. On the
basis of the aforementioned reasons the plaintiff claims from the
third defendant payment of the amount of R439,321.85.
11. The third
defendant has filed an opposing affidavit in which he denied, for the
reasons he has set out in the said affidavit,
that he had entered an
appearance merely for the sake of delay. He denied in the same
affidavit that he was personally liable,
in terms of the said
acknowledgement of debt, for the amounts claimed. Furthermore he
denied that the amounts which the plaintiff
claimed from him were due
and payable and that the said amounts were correct.
12. The third
defendant contended that, although the plaintiff made the allegations
that the Act is not applicable as Tembador
is a juristic person and
that it is a large agreement as defined in s. 4(l)(b) alternatively
40)(
a
)(
l
)
rea
d
w
'
tn
s
- 9(4) °f
Act
> the
sa
'd
Tembador was not a party to this action. He opined that in view of
the fact that he was a surety and co-principal debtor with
the
co-defendants, the Act does apply to him.
13. The third
defendant contended furthermore that the transaction was unlawful and
not enforceable by reason of the fact that
the plaintiff was not a
registered credit provider at the time when the acknowledgement of
debt was entered into. He contended
furthermore that the plaintiff
neither made the allegation that it was a registered credit provider
and nor did it submit any proof
of the fact that it was indeed
registered as such. Accordingly the plaintiffs claim against him was
unenforceable until such time
as the plaintiff could prove that it
was indeed a registered credit provider.
14. The third
defendant denied that he signed the original acknowledgement of debt
agreement or the subsequent addendum agreement.
15. The attitude
of the third defendant is that the provisions of the Act are
applicable to the transaction and accordingly the
plaintiff should
have sent him a notice in terms of s. 129 of the sard Act. As it has
failed to comply with the said section, the
plaintiff was not
entitled to proceed against him.
16. The third
defendant contended furthermore that the suretyship constituted
reckless credit as defined by the Act in as far as
it related to him,
considering his financial position at the time of conclusion of
suretyship and was of the view that, for that
reason, the claim was
unenforceable. Tembador entered into a written addendum to the
acknowledgement of debt.
17. In order to
successfully resist the plaintiff's application for summary judgment,
the third defendant must satisfy the court
that he had a bona fide
defence and disclose fully the grounds of such defence and the
material facts on which he relied for his
defence.
18. In his
opposing affidavit, the third defendant has raised the following five
defences against the plaintiff's application for
summary judgment
that:
18.1 the amount claimed has
been incorrectly determined and was thus not due and payable;
18.2 he did not sign the
acknowledgement of debt or the addendum thereto;
18.3 the plaintiff failed
to comply with the provisions of the
National Credit Act;
>
18.4 the plaintiff was not
a registered credit provider in terms of the provisions of the
National Credit Act; and
18.5 the suretyship
constituted an unenforceable and reckless credit transaction.
I now turn to dealing with
the Th ird defendant's defences singly.
19. THE AMOUNT
CLAIMED HAS BEEN INCORRECTLY DETERMINED AND WAS THEREFORE NOT
DUE
AND PAYABLE
It is as clear
as crystal that the third defendant disputes that he owes the
plaintiff the sum of R439,321.85. The third defendant
did not however
furnish any reasons why he contended that the said amount had been
incorrectly calculated. This is not enough and
I regard it as an
unfair litigation. The plaintiff is entitled to know the reasons why
the third defendant contends that the amount
claimed has been
incorrectly calculated. Where a party contends that the amount
claimed has been incorrectly calculated he should
indicate the amount
that, in his view, the other party should claim and how that amount
is computed.
20. Where a
party, as the third defendant has done, fails to furnish any reasons
for his view, he will
have failed to fully disclose the material
facts upon which his defence is based and the court
will not be
able to find that he has a bona fide defence. See Maharaj v Barclays
National Bank
Limited 1976(1) SA 418 A at 426 C-D where the court
stated as follows:
"The word
"fully" as used in the context of the Rule (and its
predecessors), has been the cause of some judicial
controversy in the
past. It connotes, in my view, that, while the defendant need not
deal exhaustively with the facts and the evidence
relied upon to
substantiate them, he must at least disclose his defence and the
material facts upon which it is based with sufficient
particularity
and completeness to enable the court to decide whether the affidavit
discloses a bona fide defence."
21. Accordingly
the third defendant's defence that the amount claimed has been
incorrectly established stands to be dismissed on
this point alone.
22. There is
another point relating to the third respondent's dispute of the
correctness of the amount claimed that I need to consider.
It was
argued by counsel for the plaintiff that the third defendant's
defence that the amount claimed has been incorrectly determined
was
baseless and lacked any merit. Counsel for the plaintiff argued
furthermore that in terms of clause 8 of the Acknowledgement
of Debt,
Tembador's indebtedness could at any time be determined and proved by
a certificate signed by the plaintiff's financial
director.
23. Accordingly
such a certificate would, without much ado, be accepted as prima
facie proof of Tembador's indebtedness to the
plaintiff and would be
sufficient to enable the plaintiff to bring an application for
summary judgment in a competent court. The
same clause 8 states, in
addition, that the third defendant accepted the onus of proving that
such an amount did not represent
the amount due by him to the
plaintiff. The third defendant, as I have already found
above, has failed to
dispute that the amount claimed by the plaintiff did not represent
the
extent of his indebtedness
to the plaintiff.
24. The terms of
clause 8 of the said Acknowledgement of Debt were repeated in clause
or paragraph 6 of the contract of suretyship
which was signed by the
third defendant himself on 8 April 2010. In his opposing affidavit,
the third defendant did not deny that
on 8 April 2010 he signed an
addendum, although this admission was contained in his counsel's
heads of argument. I must therefore
accept that the third respondent
was at all material times aware of the contents of paragraph 6 of the
Deed of Suretyship and that
his contention that the amount which the
plaintiff claimed has not been correctly worked out was disingenuous.
25. Accordingly
I dismiss the third defendant's first defence as lacking in merit.
26. HE DID NOT
SIGN THE ACKNOWLEDGEMENT OF DEBT
26.1 In his
opposing affidavit, the Third defendant denied ever having signed the
Acknowledgement of Debt or the addendum subsequent
thereto. This
issue was not referred to in the third defendant's counsel's heads of
argument.
27. It is clear
that the action against the third defendant is premised on suretyship
and not on the Acknowledgement of Debt or
Addendum. His liability
arises from the fact that on 8 April 2010 he signed a contract of
suretyship and thereby bound himself
to the plaintiff for payment of
all the amounts due and payable by Tembador 136 (Pty) Ltd to the
plaintiff in fulfilment of Tembador's
obligations arising from the
Acknowledgement of Debt signed by Tembador's representative.
28. The
contract of suretyship stated explicitly that the third defendant
acknowledged that the plaintiff would at all times be
entitled,
without reference to him, to enter into an agreement with Tembador to
amend any of the terms of the agreement between
the parties. The
plaintiff reserved the right to extend the time in which Tembador was
afforded to repay the loan amount without
the plaintiff vitiating any
of its rights in terms of the contract of suretyship. The contract of
suretyship stated furthermore
that any amendment or variation of the
terms of the acknowledgement of debt would not be regarded as a
novation of the indebtedness
of Tembador and the Third defendant
acknowledged that he would not be released from his liability in
terms of the suretyship as
a result thereof.
29. In my view,
this ground too lacks in merit and ought to be dismissed.
30. THE
PLAINTIFF FAILED TO COMPLY WITH THE PROVISIONS OF THE
NATIONAL CREDIT
ACT
31. There
exists a serious but genuine disparity between the parties as to
whether the provisions of the Act apply to the matter or transaction
between them. The third defendant contends that the said Act applies
since he is a surety and co-principal debtor. It was argued
by
counsel for the third defendant that, because the said Act applies,
the plaintiff has failed to comply with its provisions,
in particular
s. 129, thereof in as much as the plaintiff has failed to send him a
notice referred to in the said section. Section
129 of the Act
provides as follows:
"i29(i)lf the consumer
is in default under a credit agreement, the credit provider -
(a) may draw the default
to the notice of the consumer in writing and propose that the
consumer refer the credit agreement to a
debt counsellor, alternative
dispute resolution, agent, consumer court or ombud with jurisdiction,
with intend that the parties
resolve any dispute under the agreement
or develop and agree on a plan to bring payments under the agreement
up to date; and
(b) subject to section
130(2), may not commence any legal proceedings to enforce the
agreement before
(i) first providing notice
to the consumer, as contemplated in paragraph (a),
or in section 86(10), as
the case may be; and (if) meeting any further requirements set out in
section 130."
32. The
provisions of s. 129 are, where they apply, peremptory and failure by
a party to comply with them is fatal. There are two
reasons that the
third defendant provided in support of his
view that the
provisions of the said Act are applicable. The first of these two
reasons is that, although the plaintiff contended
that the Act was
not applicable as Tembador was a juristic person and that the amount
involved made the agreement a large one,
Tembador was not a party to
this action; secondly, that the third defendant contended that the
action against him was based on
the suretyship and not on
Acknowledgement of Debt. As the plaintiff has failed to comply with
s. 129 of the said Act, it was the
third defendant's view that its
claim for summary judgment should, on the basis of the aforementioned
two reasons, fail.
33. I now turn
to consider the plaintiff's view. According to the plaintiff, the
credit agreement on which its claim was based
was concluded between
it and Tembador 136 (Pty) Ltd and Tembador was a juristic person as
envisaged by the provisions of s. 4(1
)(a), and secondly the credit
agreement was, as referred to in s. 4(l)(b), a large agreement. Based
on those two reasons, it is
the plaintiff's case, and it was so
argued by the plaintiff's counsel, that the Act does not apply to the
credit agreement between
the parties and therefore does not apply to
the transaction of suretyship in terms of which the third respondent
had undertaken
or promised to satisfy the obligation of the said
Tembador (Pty) Ltd.
34. While the
plaintiff accepted that the third defendant was surety it opined that
when a surety guarantees payment of a credit
agreement in terms of
which the consumer is a juristic person, as contemplated in terms of
s. 4(i)(a), and the credit agreement
is a large agreement, as
contemplated in s. 4(i)(b), the provisions of the Act do not apply to
such a surety and such a surety
may not seek the protection afforded
by s. 129 of the Act. In other words, where the circumstances set out
in s. 4(1 )(a) and 4(i)(b)
of the Act exist, the position of the
surety is that the Act will also not apply to him or her. That this
is the position appears
quite clearly from the provisions of s. 2(c)
of the said Act which provides as follows:
"2 For
greater certainty in applying subsection (i)
(c) this Act applies to a
credit guarantee only to the extent that this Act applies to a credit
facility or credit transaction in
respect of which the credit
guarantee is granted."
The question
whether or not the provisions of the Act apply to the transaction of
suretyship between the credit grantor and the
surety who guarantees
payment in terms of which the consumer is a juristic person as
envisaged in s. 4(1 )(a) of the Act, and the
credit agreement is a
large agreement, as contemplated in s. 4(i)(b) of the Act, depends on
whether the Act applies to the acknowledgement
of Debt to which the
suretyship is secondary. Consequently, the provisions of the Act will
not apply to the suretyship transaction
if they do not apply to an
Acknowledgement of debt to which suretyship is secondary.
Accordingly
where this Act does not apply to a transaction or credit agreement,
it will also not
apply to surety
of a principal debt.
35. Counsel for
the plaintiff referred the court to JW Scholtz: Guide To The
National
Credit Act 2005
Lexis Nexis; in which the learned author stated that
a contract of suretyship is indeed a credit agreement. He cautioned
however
that the agreement of which the guarantee applies must itself
be subject to the Act before the Act can apply to the relevant
contract
of suretyship. In order to explain the law, the said author
used the following example:
"If a
member of a close corporation gives a guarantee in respect of a lease
or an instalment sale agreement entered into by
the close corporation
and the principle debt equals or exceeds R250,ooo.oo, the underlying
agreement is not subject to the Act
and the credit guarantee likewise
falls outside the scope of the Act." See paragraph 8.2.4
thereof.
The issue
regarding the nature of the liability of the surety and whether as
such he qualifies for protection under the Act was
visited and
decided in First Rand Bank Limited v Carl Beck Estates (Pty) Ltd
2009(3) SA 384 TPD. The court, having reiterated that
s. 8(5) of the
Act provided that an agreement constitutes a credit agreement if, in
terms of that agreement a person undertakes
or promises to satisfy
upon demand any obligation of a consumer in terms of a credit
facility or credit transaction to which the
Act applies, held that
the Act did not apply to credit agreement where a consumer is a
juristic person.
In the said
authority, the first respondent, which was a juristic person, had
concluded a large agreement. The court reasoned that
in such a case,
one of the exemptions contained in s. 4 of the Act had to apply to
the credit agreement by reason of the fact that
either the value or
turnover exceeded the threshold and s. 4(0(
a
) would
accordingly exempt the application of the Act or the value or
turnover failed to satisfy the minimum threshold and s. 4(i)(b)
of
the Act would exempt the application of the Act. The court decided
that where the provisions of the Act do not apply to a credit
agreement, no duty rested on the applicant or plaintiff to furnish
the respondent or defendant with a notice referred to in s.
129 of
the Act before commencing legal proceedings against the respondent or
defendant.
36. In
conclusion I find that the principal credit agreement was a large
agreement which was
concluded by a juristic person. I therefore
find that for those two reasons the provisions of the Act do not
apply to the transaction
in question. I also find that the ancillary
agreement of suretyship that the third defendant signed on 8 April
2010, as a consequence,
falls outside the scope of the application of
the said Act. I therefore find no merit at all in the third
defendant's defences
that the Act applies. Accordingly there was no
obligation on the plaintiff to provide the third defendant with a
notice in terms
of s. 129 of the Act. In view of the finding of this
court that the provisions of the Act did not apply to the subsections
which
constitutes the subject matter of this litigation the rest of
the defences raised by the third defendant do not merit any further
consideration.
Accordingly,
subject to the plaintiff's prayers in the combined summons that the
one paying and the otherto be absolved, I make
the following order:
1. Summary
judgment against the third defendant for payment of the sum of
1-1439,321.85 is hereby granted.
2. The third
defendant is hereby ordered to pay interest on the said sum of
R439,321.85 at Standard Bank's prime lending rate from
time to time
calculated daily and computed monthly in arrears as from 1 April 2011
to date of payment.
3. The third
defendant is ordered to pay the costs on the scale as between
attorney-and-client.
P. M. MABUSE
JUDGE OF THE HIGH COURT
Appearances:
Plaintiff's Attorneys:
Messrs MacRobbert Inc. on
instruction of Werksmans Inc.
Plaintiff's Counsel:
Adv. N Breytenbach
Third Defendant's
Attorneys:
Messrs Jasper vd Westhuzien
& Bodenstein Inc.
Third Defendant's Counsel:
Adv. FG Janse van Rensburg
Date Heard:
28 November 2011
Date of Judgment:
3 February 2011