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[2012] ZAKZPHC 61
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Sasol Polymers, a division of Sasol Chemical Industries Ltd v Southern Ambition 990 CC t/a Choie Plastics and Another (1225/12) [2012] ZAKZPHC 61 (26 September 2012)
THE KWAZULU-NATAL HIGH COURT
PIETERMARITZBURG CASE NO. 1225/12
REPUBLIC OF SOUTH AFRICA
In the matter between:
SASOL POLYMERS, a division of SASOL
CHEMICAL INDUSTRIES LIMITED
.................................................
Applicant
and
SOUTHERN AMBITION 990 CC t/a
CHOICE PLASTICS
...................................................................
First
Respondent
(Registration o.2006/037/462/23)
HEMANTH RAJKUMAR SINGH
.......................................
Second
Respondent
(Identity No.
_____________________________________________________________
JUDGMENT
Delivered on 26 September 2012
_____________________________________________________________
CHETTY AJ
[1] In this application, the applicant has requested
judgment against the first and second respondents jointly and
severally for
the payment of the sum of R1 033 000.51, together with
costs on an attorney and client scale.
[2] The respondents have opposed the application,
raising various disputes, concluding that they are not liable to the
applicant
as claimed and have requested that the application be
dismissed.
[3] On 24 April 2008, and within the court’s
jurisdiction, the applicant concluded a written agreement (the Credit
Application)
with the first respondent. In terms of the Credit
Application, first respondent applied for a credit facility with
applicant for
an amount R400 000. The Credit Application was signed
by the second respondent who, at the material time, was the sole
member of
the first respondent. The first page of the Credit
Application contains the details of the first respondent and at the
bottom of
the page the following description of the applicant
appears:
“
Sasol Polymers
A division of Sasol Chemical Industries Limited
Registration No.1968/013914/06”
[4] The relevant provisions of the credit application
are
inter alia
the following:
(i) Unless the buyer (the first respondent) objects in
writing to the balance outstanding, the statement shall be
prima
facie
proof of the amount –
Para 5.3.
(ii) A certificate signed by a director or manager of
the applicant, or any independent third party, whose office need not
be proved,
shall be
prima facie
proof of both the existence of
the debt as well as the amount due by the buyer – para 5.13.
If the buyer defaults in the due fulfilment of any
obligation, applicant shall be entitled to recover costs from the
buyer on
a scale as between attorney and client – para 17.1.
[5] On 6 May 2008 the second respondent bound himself as
surety for and co-principal debtor in
solidum
with the first
respondent in favour of the applicant. The relevant provisions of the
suretyship agreement are
inter alia
the following:
(i) No variation of the suretyship agreement was
permissible unless reduced to writing and signed by the parties –
para 3.
(ii) A certificate of indebtedness signed by one of the
applicant’s directors or manager shall constitute
prima
facie
proof of the indebtedness – para 7.
(iii) The total amount recoverable from the second
respondent shall not exceed R400 000 plus all legal costs on an
attorney and
client scale – para 17.
[6] At the time of the conclusion of the credit
application and the suretyship agreement, the second respondent was
the sole member
of the first respondent. On 2 August 2010 Balan
Naidoo (Naidoo) acquired a 90% member’s interest in the first
respondent,
with 10% being allocated to Donovan Reginald Ranjith.
Naidoo deposed to the main answering affidavit disputing liability.
[7] With the commencement of trading, the first
respondent purchased chemical products (goods) from the applicant and
as a result
thereof became indebted to the applicant in the sum
claimed. Zelda Steyn (Steyn), the credit manager of the applicant
deposed to
the affidavits in support of applicant’s claim, duly
authorised thereto in terms of a written resolution of the applicant.
[8] Having alluded to the disputes raised by the
respondents, I deal now briefly with the legal position concerning
disputes of
fact.
[9] As stated by Van Wyk J in
Stellenbosch
Farmers’ Winery v Stellenvale Winery
1
:
“
It seems to me that where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings
if the facts as stated by the
respondents together with the admitted facts in the applicant’s
affidavit justifies such an
order.”
In
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
2
Corbett JA stated:
“
In certain instances the
denial by respondent of a fact alleged by applicant may not be such
as to raise a real, genuine or bona
fide dispute of fact. (See in
this regard
Room
Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
3
,
Da Mata v Otto NO
4
)
.”
[10] In
Peterson v Cuthbert &
Co Ltd
5
it was said that a bare denial of the applicant’s
allegations in his or her affidavits will not in general be
sufficient to
generate a genuine or real dispute of fact. In
Soffiantini v Mould
6
Price JP stated:
“
It is necessary to make a
robust, commonsense approach to a dispute on motion as otherwise the
effective functioning of the court
can be hamstrung and circumvented
by the most simple and blatant stratagem.”
[11] In the case of
South Coast
Furnishers v Secprop Investments
7
,
Gorven J stated:
“
I conceive that the test to
be applied as to whether a genuine factual dispute has been raised on
the papers is similar in nature
to that of a trial at the point where
the plaintiff’s case has been closed and absolution is sought
before the defence is
embarked upon. Here, the test is whether there
is evidence upon which a reasonable presiding officer might or could
find for the
plaintiff. If there is, absolution should be refused.
The court does not enter into an evaluation of the credibility of
witnesses
unless there have ‘palpably broken down, and where it
is clear that they have stated what is not true’. Similarly, in
motion proceedings, a robust approach can be taken, and the matter
decided on the probabilities, if that clear falsity emerges
from the
papers.”
[12] I turn to deal with the disputed issues in this
application.
[13] The
locus standi
of the applicant has been disputed, with Naidoo
contending that the applicant is not a creditor of the respondents.
It is clear
from both the credit application and the suretyship
agreement who the applicant is. See in this regard
Mega
Flex (ʼn Divisie van Sentrachem Bpk) en Andere v White River
Motor Trading (Edms) Bpk
8
.
The various invoices produced by applicant,
the certificate of balance and the correspondences bear testimony to
the contractual
nexus
.
It is clear from the credit application that the applicant was
granting the first respondent credit facilities and the full citation
of the applicant is mentioned. Counsel for the respondents, Mr
Manikam, contended in argument before me that all the invoices and
credit notes simply make reference to the trading name when reference
is made to “Sasol Polymers trading as Sasol Polymer
Distributors (SPD)”. In particular he contended that the
customer statement makes no reference to the applicant and therefore
this, taken in conjunction with the fact that the corporate
documentation of the applicant has not been placed before the court,
the applicant has not established its
locus
standi.
Apart from simply denying this, the
respondents have placed no other information before the court and
therefore I find that this
amounts to a simple bare denial and there
is no merit in this contention.
[14] Steyn’s authority in deposing to the
affidavits has been challenged without the respondents demonstrating
on what basis
this is done. No authority is required to depose to an
affidavit. The deponent is simply a witness in the case. In any
event, the
onus
is on the respondents to challenge any
authority in clear and unambiguous terms. I am satisfied that despite
the criticism by the
respondents of the resolution (ZS1), the fact
that Steyn is the credit manager of the applicant, and the
circumstances surrounding
this transaction warrant the conclusion
that she is properly authorised.
[15] The respondents contend that the credit application
was declined and that the agreements concluded are invalid. Naidoo,
who
was not a member of the first respondent at the time of the
conclusion of the agreements is in no position to make this
contention.
It would appear from Mr Manikam’s argument on
behalf of the respondents that the lapse of time from the conclusion
of the
credit application to the time when business was apparently
done, must be interpreted to mean that the application for credit was
declined. I cannot agree with this submission for on 19 June 2008 the
applicant forwarded a letter to the first respondent confirming
that
the application was granted save that the limit was restricted to
R100 000. Of importance is the fact that the letter stated
that the
account number 14022 would appear on all invoices and statements
generated by the applicant. After the credit application
was
approved, the credit facility was increased on two occasions, that
being in November 2010 to R900 000 and finally in May 2011
to R1
million. I place no reliance on the respondents’ contention
regarding the lapse of time for goods were purchased by
the first
respondent from the applicant giving rise to their indebtedness. Both
the agreements are accordingly valid and binding
on the respondents.
[16] The respondents deny that the applicant sold goods
to the first respondent, but at the same time allege three payments
were
made to the applicant. The statements produced by the applicant
refer to the first respondent, and all the invoices bear testimony
to
the receipt of the goods by the first respondent. Counsel for the
applicant, Mr Pietersen, in my view, correctly pointed out
that it
was open to the respondents to demonstrate their payments rather than
simply making the allegations. This having specific
regard to the
fact that a unique account number was allocated to the first
respondent. The respondents have further failed to produce
proof of
such payment to the applicant and this therefore does not amount to a
bona fide
dispute and is untenable.
[17] The first respondent also contends that the
provisions of the
National Credit Act 34 of 2005
are applicable to
this transaction and that the applicant has not complied therewith.
Section 4(a)(i)
excludes compliance with the Act when the consumer is
a juristic person whose asset value or annual turnover, together with
the
combined asset value or annual turnover of all related juristic
persons, at the time the agreement is made, equals or exceeds the
sum
of R1 million as specified in
section 7(1)(a).
Although the first
respondent has contended that the provisions of the
National Credit
Act are
applicable they have set out no basis on which this
contention is made. I find that the applicant has made the averment
that the
Act does not apply and that the
onus
is on the first
respondent to set out the basis on which the Act is applicable.
[18] Most, if not all, of the contentions by the first
respondent appear to have no substance when one has regard to the
fact that
Naidoo on behalf of the first respondent signed an
acknowledgment of debt in favour of the applicant on 17 August 2011.
It was
contended on behalf of applicant that the provision of the
acknowledgment of debt on behalf of first respondent corroborates the
contention by applicant that the first and second respondents are
indeed indebted to the applicant. Counsel for the respondents
contended that the conclusion of the acknowledgment of debt amounts
to a novation and therefore applicant can place no reliance
thereon.
He also argued that the identity of the applicant is not correctly
illustrated on the acknowledgment, and therefore no
reliance could be
placed on this document. It is however also instructive that in the
acknowledgment of debt the first respondent
undertook to pay to the
applicant the amount which is the subject of this application.
[19] Assessing the disputes raised by the first
respondent and having regard to the legal position it is clear to me
that most,
if not all, of the first respondent’s denials amount
to a bare denial. Subject to the fact that the second respondent’s
liability is restricted to the sum of R400 000, I find that the
applicant has made out a case. I am of the view that there are
no
real, genuine or
bona fide
disputes of fact on the papers and
adopting a commonsense approach there is an overwhelming probability
of the first and second
respondents’ indebtedness to the
applicant. I find that the applicant has made out a case for the
relief it seeks and that
there is no doubt that the first and second
respondents are indebted to the applicant in respect of goods that
have been purchased,
pursuant to the conclusion of the agreements in
2008.
[20] In the circumstances I grant the following order:
1. Judgment is granted against the first respondent in
the sum of R1 033 000.51;
2. Judgment is granted against the second respondent in
the sum of R400 000.00, such judgment to be joint and several
with
that granted against the first respondent, the one paying the
other to be absolved;
3. First and second respondents are to pay the costs of
the application on an attorney and client scale, jointly and
severally,
the one paying the other to be absolved.
DATE OF HEARING 17 September 2012
DATE OF JUDGMENT 26 September 2012
PLAINTIFF’S COUNSEL Mr W.J Pietersen
PLAINTIFF’S ATTORNEYS Messina Incorporated
c/o Shepstone and Wylie
DEFENDANT’S COUNSEL Mr M. Manikam
DEFENDANT’S ATTORNEYS Asmal & Asmal
c/o Essa & Associates
1
1957
(4) SA 234
at 235 (CPD) para E
2
[1984] ZASCA 51
;
1984
(3) SA 623
A at 634 I
3
1949
(3) SA 1155
(T) at 1163-5;
4
1972
(3) SA 858
(A) at 882 D-H
5
1945
AD 420
at 428-9
6
1956
(4) SA 150
E at 154 G-H
7
2012
(3) SA 431
at 439 E-F
8
1996
(1) SA 616.