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[2012] ZAKZDHC 55
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KZN Oils (Pty) Ltd v Padayachee (2011/2012) [2012] ZAKZDHC 55 (27 September 2012)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
REPORTABLE
Case
No : 2011/2012
In
the matter between :
KZN
Oils (Pty) Ltd
.................................................................................................
Plaintiff
and
Shaida
Banu Padayachee
................................................................................
Defendant
Judgment
Lopes J
[1] This is an application for summary
judgment in which the plaintiff seeks judgment for payment of the sum
of R9 381 819,60, together
with interest thereon and costs.
[2] The plaintiff’s claim is
based upon the following :
on the 9
th
July 2010 the
defendant ceded to the plaintiff her 100% member’s interest in
and to Golden Rewards 1311 CC (‘Golden
Rewards’);
that cession records that :
the plaintiff had concluded an
agreement with CKT Express (‘CKT’) for the sale of bulk
diesel fuel and lubricants;
the cession was provided as security
for the non-payment of liabilities owed by CKT to the plaintiff;
the cession would only operate upon
default of payment by CKT to the plaintiff;
on the 9
th
July 2010 the
defendant signed a deed of suretyship in favour of the plaintiff
binding herself as surety for, and co-principal
debtor with, Golden
Rewards for the debts then owed, and to be owed by Golden Rewards to
the plaintiff;
by the 1
st
May 2011 CKT
was indebted to the plaintiff in the sum of R9 381 819,60 which
amount continued to attract interest;
the plaintiff further alleges in its
particulars of claim that the incorrect debtor was cited in the
suretyship agreement and
it should have been CKT and not Golden
Rewards;
accordingly, in its prayers to the
particulars of claim the plaintiff seeks an order rectifying the
deed of suretyship and for
the money judgment which it now seeks in
the summary judgment application.
[3] Mr
Naidu
, who appeared for
the plaintiff submitted that it is clear from a reading of the
documents annexed to the particulars of claim
that Golden Rewards was
not indebted to the plaintiff for any amount and the correct debtor
in the suretyship should have been
reflected as CKT. Mr
Naidu
conceded that he could not seek summary judgment for an order for
the rectification of the suretyship, but submitted that as it was
clearly something to which the plaintiff was entitled, I should grant
summary judgment for the monetary amounts sought.
[4] It is clear that the summary
judgment can only be premised upon a conclusion that the
rectification will be granted in favour
of the plaintiff. In her
affidavit opposing summary judgment the defendant emphatically denies
that she intended to be bound as
surety for, and co-principal debtor
with, CKT for its debts to the plaintiff. She avers that she only
ever intended to be bound
for the debts owed to the plaintiff by
Golden Rewards, and she suggests that evidence of this is the fact
that she had ceded her
100% member’s interest in and to Golden
Rewards as part of the security.
[5] In
Malcomess Scania (Pty) Ltd v
Vermaak and Another
1984 (1) SA 294
(WLD) Coetzee J dealt with an
acknowledgment of debt in favour of the plaintiff and a deed of
suretyship signed by the second defendant
guaranteeing all the first
defendant’s obligations. The plaintiff sought rectification of
the acknowledgment of debt to delete
the words ‘
money
actually lent and advanced
’ and substituting therefor
the words ‘
work done and materials supplied
’.
[6] In the summary judgment opposing
affidavit in
Malcomess
a point in limine was taken that
summary judgment was not competent under the Rules of Court. The
plaintiff’s counsel conceded
that the first claim for
rectification could not be dealt with by way of summary judgment, but
pressed on with the second claim
in terms of the deed of suretyship
without withdrawing the first claim. Coetzee J was of the view that
where a monetary claim is
preceded by a claim for rectification the
latter depends upon the document being rectified because, the
monetary claim is based
on the document so rectified. The only way in
which the suretyship signed by the second defendant could operate, is
if the underlying
monetary claim which is based on the rectified
agreement, succeeds. In those circumstances Coetzee J dismissed the
summary judgment
application.
[7] Malcomess
was considered in
PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso
Trading 119 (Pty) Ltd
2009 (4) SA 68
(SCA) in which the plaintiff
sought payment in terms of a contract which was required to be
rectified. The defendant in that case
did not dispute the allegations
justifying rectification, and the court held that summary judgment
was competent where the parties
were ad idem as to the manner in
which their written contract did not correctly reflect their
agreement. Summary judgment was granted
on the agreement as
rectified. At page 70 H, Cloete J stated :
‘
I
therefore with respect agree with the judgment of Coetzee J in
Malcomess
Scania (Pty) Ltd v Vermaak and Another
to
the extent that it holds that a plaintiff who alleges that a written
contract should be rectified is confined to what the plaintiff
alleges is the true agreement between the parties, and cannot (in the
absence of an express indication to the contrary) rely in
the
alternative upon the terms of the written agreement as they stand;
but I am constrained to disagree with that judgment to the
extent
that it suggests that summary judgment is incompetent, even where
both parties are
ad
idem
as
to the respects in which their written contract does not correctly
reflect the agreement between them.’
[8] The present case is
distinguishable from
PLC Consulting
because the defendant has
emphatically stated in her summary judgment opposing affidavit that
she did not give a personal surety
to the plaintiff for the debts of
CKT. She only admits having ceded her membership interest in Golden
Rewards as security for the
debts of CKT. She further states that she
had no intention of ever standing surety for CKT. She regarded the
cession of her membership
in Golden Rewards as a full discharge for
her obligations to the plaintiff.
[9] In those circumstances I agree
with the views of Coetzee J in
Malcomess.
Logically, if the
cause of action for summary judgment depends upon the rectification
of the suretyship, the money judgment cannot
operate until
rectification is decided in favour of the plaintiff. As the defendant
has raised a triable issue, the summary judgment
application falls to
be dismissed.
[10] It was necessary for the
defendant to apply for condonation of the late filing of her summary
judgment opposing affidavit.
For the reasons set forth therein I find
that a proper case has been made out for the grant of condonation and
I make the following
order :
The defendant is granted condonation
for the late filing of her summary judgment opposing affidavit;
summary judgment is refused;
the defendant is given leave to
defend the action;
in terms of Practice Directive 21 of
this court, the matter shall be placed upon the expedited trial
roll for hearing;
the costs of the application for
condonation are to be paid by the defendant;
the costs of the application for
summary judgment are reserved for determination by the trial court.
Date of hearing : 20
th
September 2012
Date of judgment : 27
th
September 2012
Counsel for the Plaintiff : K Naidu
(instructed by Sigamoney Inc)
Counsel for the Defendant : A Moodley
(instructed by RHM Attorneys)