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[2011] ZAKZDHC 48
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Penta Shipping Holdings (Pty) Ltd v Nzenga Investments (Pty) Ltd and Another (2860/2011) [2011] ZAKZDHC 48 (2 November 2011)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
Case No :2860/2011
In
the matter between :
Penta
Shipping Holdings (Pty) Ltd
….................................................................
Applicant
and
Nzenga
Investments (Pty) Ltd
…...........................................................
First
Respondent
Nkosinathi
Thusi
…..........................................................................
Second
Respondent
Judgment
Lopes J
[1] In this matter the applicant (as
plaintiff) seeks summary judgment against the first respondent (as
defendant), and against
the first and second respondents jointly and
severally, together with interest and costs.
[2] The applicant’s cause of
action may be summarised as follows :-
(a)
First Claim
on the 12
th
July 2005 the
applicant bound itself as surety and co-principal debtor on behalf
of the first respondent in favour of ABSA Bank
Limited (‘ABSA’)
for the repayment on demand of all sums then owed, or which in the
future would become owing, to
ABSA from any cause arising;
ABSA in turn bound itself as
guarantor for the due payment by the first respondent of amounts
which it then owed or in the future
would owe to Transnet, up to a
maximum of R2 000 000;
on the 30
th
November 2009
Transnet made written demand for payment of the sum of R2 000 000,
and on the 18
th
January 2010 the applicant, as it was
bound in law to do, paid ABSA that sum;
(b)
The second claim
on the 18
th
July 2006 ABSA
issued a guarantee (the second guarantee) on behalf of the first
respondent in favour of Transnet;
in terms thereof ABSA guaranteed the
debts of the first respondent to Transnet arising out of a credit
account agreement concluded
between the first respondent and
Transnet, up to a maximum of R2 000 0OO;
on the 10
th
August 2006
that guarantee was reduced to an amount of R1 107 719;
on the 27
th
October 2004
ABSA had issued a further guarantee in favour of Transnet (the third
guarantee) ;
the third guarantee was initially in
the sum of R400 000, but on the 1
st
July 2005 increased
to the sum of R1 000 000;
on the 3
rd
February 2010
Transnet made written demand for payment in terms of the second and
third guarantees;
on the 22
nd
February 2010
ABSA debited the bank account of the first respondent with the sum
of R2 107 719 being the amount payable by ABSA
to Transnet in terms
of the second and third guarantees;
the first respondent’s bank
account then became overdrawn to the extent of R1 493 715,20 which
was payable immediately;
in terms of the suretyship agreement
referred to above, the applicant was liable to, and did, make
payment to ABSA of that amount.
[3] On or about the 19
th
October 2004 the second respondent executed a written deed of
suretyship in which he bound himself as surety for, and co-principal
debtor jointly and severally with, the first respondent in favour of
ABSA for the repayment on demand of any sums of money which
the first
respondent owed or would in the future owe to ABSA from whatever
cause arising, and for the due fulfilment of all obligations
of the
first respondent to ABSA in respect of such indebtedness.
[4] In terms of that suretyship, where
one or more persons signed as surety for the obligations of the first
respondent in favour
of ABSA, each party would be jointly and
severally liable as surety and co-principal debtor for such
obligations.
[5] Accordingly, the second respondent
was jointly and severally liable with the first respondent and the
applicant for the debts
of the first respondent.
[6] The first respondent having failed
to pay its debts to ABSA the plaintiff was compelled to pay the
amount aforesaid to ABSA
in terms of the surety agreement.
[7] The plaintiff accordingly claims
payment from the first respondent of R1 000 000 and R746 857,60
(being half of the R1 493 715,20).
In addition the plaintiff claims
against the first and second defendants jointly and severally, the
sum of R1 000 000 and the further
sum of R746 857,60 (together with
interest against the first respondent only) and costs against both
respondents.
[8] Pursuant to that indebtedness the
applicant issued summons against the first and second respondents who
opposed the action.
In due course the applicant applied for summary
judgment.
[9] The first and second respondents
opposed the application for summary judgment and their defence was
set out in an affidavit
deposed to by the second respondent.
[10] In the summary judgment affidavit
put up by the second respondent on behalf of both respondents, a
number of allegations were
made in an attempt to justify a bona fide
defence. Save for the two references set out below, the essential
averments made by the
plaintiff in its particulars of claim are not
denied. In sub-paragraph 4 the second respondent alleges that in or
about February
2005 an oral agreement was concluded with the late K M
Sullivan (‘Sullivan’) representing the plaintiff and the
first
defendant represented by himself,
‘
the material
express
alternatively
implied
alternatively
tacit terms and/or conditions of which were,
inter
alia
,
as follows :-
i the plaintiff would,
inter alia
,
inject capital and equipment into the first defendant as and when
required to do so as well as pass containerised business through
the
first defendant’s Alrode depot, and in particular to maintain
the first defendant’s rail account with TFR (Transnet)
in order
for the first defendant to transport containerised cargo for its
customers, as also to ensure that the first defendant
operates
smoothly as a business enterprise.
…
Iv the shareholding in the first
defendant would be on an equal basis between the plaintiff and myself
…
the guarantees furnished by the
plaintiff to TFR were in order for the first defendant to maintain a
revolving credit facility
with TFR, and were part and parcel of the
capital contribution made by the plaintiff into the business of the
first defendant.
There is, ergo, no liability to the
plaintiff on the part of the first defendant and/or myself.’
[11] The plaintiff’s counsel
drafted the plaintiff’s short heads of argument which were
served on the respondents’
attorneys on the 21
st
September 2011.
[12] No doubt upon reading those heads
of argument the respondents’ legal representatives appreciated
and understood the shortcomings
in the second respondent’s
opposing affidavit. Presumably pursuant to that realisation, the
respondents delivered a supplementary
opposing affidavit on the 27
th
October 2011, the day before the hearing.
[13] Mr
Kemp
SC, who appeared
for the plaintiff together with Mr Wallis, indicated at the outset of
their argument that the plaintiff would
not oppose delivery of the
supplementary opposing affidavit.
[14] That supplementary opposing
affidavit proceeds to amplify the basis of the respondents’
defence. From what is stated
therein it is clear that there was a
history of dealings between the plaintiff and the second respondent
as the erstwhile owner
and representative of the first respondent.
[15] In the applicant’s
particulars of claim the applicant dealt only with the legal
documentation founding its claim against
the respondents – i.e.
the suretyship agreements and the guarantees issued by ABSA Bank to
Transnet. That being so, I have
no version of events with which to
compare the allegations made by the second respondent in his opposing
affidavits.
[16] In the supplementary opposing
affidavit the second respondent sets out that :-
the applicant and the first
respondent decided to combine business forces for their respective
benefit;
part of the agreement was that the
applicant, together with King Rest Container Park (Pty) Ltd and the
second respondent would
all become one-third shareholders in the
first respondent;
the capital contribution of the
applicant to the first respondent would be by way of sureties and
guarantees as well as the
provision of some business;
as between the shareholders of the
first defendant, the plaintiff would have no recourse to recover
from the other shareholders
or the first defendant any amounts
which it was liable to pay out pursuant to the suretyships and
guarantees provided for it
and on its behalf; and
on that basis the principle of the
recovery by the applicant of its aliquot share pursuant to the
suretyship agreement concluded
by the second respondent in favour
of ABSA, would not apply.
[17] This arrangement eventually fell
through on the 17
th
November 2009 when the applicant’s
representative informed the first respondent that it would make no
further contributions
in terms of the underlying agreement.
[18] The second respondent raises the
further issue that the suretyship agreement relied upon by the
applicant for the payment of
its aliquot share was concluded with the
bank well prior to the shareholding agreement having been concluded.
[19] I agree with Mr
Kemp
’s
submission that the respondents’ version of the agreements
concluded between the applicant and the first respondent
are somewhat
improbable. Is that, however, enough for me to disbelieve them to the
extent that I could safely say that the respondents
have not made out
a bona fide defence? Given that the applicant did not in its summons
set out the basis upon which the relationship
between the applicant
and the first respondent was founded, I only have the version of the
respondents before me in that regard.
This defence is not in the
category of a bare denial or a denial of knowledge of any of the
events. Most of the applicant’s
averments are admitted. In this
regard I agree with the statement of Patel J in
Mercantile Bank
Ltd v Star Power CC and Another
2003 (3) SA 309
(TPD) at page
311, paragraph 7 where he stated :-
‘
To test the
bona
fides
of the defendants it is necessary to contextualise the defendant’s
averments in their totality, rather than simply selecting
a
particular averment and then characterising it as bald, vague or
laconic.’
[20] If the averments made by the
second respondent are true, then the respondents will have raised a
triable issue, which if proved
at trial, would constitute a defence
to the applicant’s claim. As the original denial has been
considerably amplified in
the supplementary opposing affidavit, I am
left with some doubt that the applicant has an unanswerable case. In
those circumstances
the applicant is not entitled to summary
judgment.
[21] I accordingly make the following
order :-
(1) the application for summary
judgment is refused;
(2) the defendants are given leave to
defend the action;
(3) the costs of the summary judgment
application are reserved for decision by the trial court.
Date of hearing : 28
th
October 2011
Date of judgment : 2
nd
November 2011
Counsel for the Applicant : K J Kemp
SC with P J Wallis (instructed by Van Velden Pike & Partners)
Counsel for the Respondent : I Moosa
(instructed by J Surju)