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[2009] ZAFSHC 127
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High Point Trading 733 BK t/a High Point Bridging v De Villiers and Others (671/2009) [2009] ZAFSHC 127 (10 December 2009)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 671/2009
In
the
matter
between:-
HIGH
POINT TRADING 733 BK
Applicant
t/a
HIGH POINT BRIDGING
and
STEENKAMP
DE VILLIERS AND COERTZE
1
st
Respondent
IZAK
JACOB STEENKAMP
2
nd
Respondent
JOHANN
MARKS DE VILLIERS
3
rd
Respondent
REHAN
COETZEE
4
th
Respondent
_____________________________________________________
HEARD
ON:
27
AUGUST 2009
_____________________________________________________
DELIVERED
ON:
10
DECEMBER 2009
_____________________________________________________
JUDGMENT
BY:
SIMELANE,
AJ
_____________________________________________________
[1] This
is an
application
by the applicant to compel the respondents to pay R49 955,00 (forty
nine thousand nine hundred and fifty five rand)
together with
interest at the rate of 15,5% per year from 1 August 2008, the
respondents to pay that amount jointly and severally,
the one paying
the others to be absolved and that the respondents pay the costs of
this application on a scale as between attorney
and client.
[2] There are four
aspects of importance in this application, namely:
(a) The citation of the
first respondent as a partnership and the other respondents as
partners of the first respondent.
(b) The
interpretation of annexure âV5â, i.e. whether Steenkamp De
Villiers and Coetzee Ingelyf in terms of annexure âV5â
was merely
to act as agent for Oosthuizen or whether âV5â created an
agreement binding on Steenkamp De Villiers en Coetzee
Ingelyf to pay
the applicant from the
proceeds
of the sale of the two immovable properties in question.
(c) The applicability of
the National Credit Act.
(d) The
application for a punishing order of costs against the respondents.
[3]
Citation:
The
first respondent is cited as Steenkamp De Villiers and Coetzee
prokureurs and the second, third and fourth respondents are cited
as
partners of the first respondent and are sued jointly and severally
in view of their position as partners.
[4] The application by
the applicant is based on a bridging agreement. B.J.J. Oosthuizen
was owner of two erven, namely, Erf 27471
and Erf 27472 situated at
Vista Park, Extension 163. He borrowed a sum of money from High
Point Trading 733 CC. This money would
be payable out of the
proceeds of the sale of the two erven by the agent Steenkamp De
Villiers and Coetzee Ingelyf.
[5] B.J.J.
Oosthuizen signed an acknowledgement of dept in favour of the
creditor â High Point Trading 733 CC trading as High
Point
Bridging. The acknowledgement of dept is marked âV3â. This
transaction is based on a contract between Oosthuizen and
High Point
Trading 733 CC. The contract marked âV4â expressly stipulates
that Steenkamp De Villiers and Coetzee Ingelyf shall
pay the
applicant out of the proceeds of the sale of the two immovable
properties on the happening of a specific event, i.e. the
sale of the
two immovable properties.
[6] Steenkamp De Villiers
and Coetzee Ingelyf in turn made and signed an undertaking to pay
over to High Point Trading 733 CC from
the proceeds of the sale of
the two immovable properties. The sale occurred but Steenkamp De
Villiers en Coetzee Ingelyf did not
pay over to High Point Trading
733 CC alleging that there were no proceeds available.
[7] High Point Trading
733 CC now brings an application against Steenkamp De Villiers en
Coetzee Ingelyf to pay on the strength
of that undertaking, namely
âV5â. In the papers before the court the first respondent is not
cited as an incorporated company
but as a firm of attorneys and the
second, third and fourth respondents as partners of the first
respondent.
[8] In the opposing
affidavit the first respondent objects to this citation and avers
that it is not a partnership but an incorporated
company incorporated
according to the laws of the Republic of South Africa with the
registration number 2007/007414/21. The first
respondent alleges
further that the second, third and fourth respondents are not
partners but directors of that incorporated company.
[9] In
the replying affidavit the applicant does not respond to this
averment which therefore means that this averment is not contested
by
the applicant. It has not been gainsaid. Moreover, these are motion
proceedings and the rule in
Plascon-Evans
applies
in terms of which the respondentsâ averments in this regard would,
if there was a dispute of facts, prevail.
[10] In the premises the
objection that the wrong parties have been cited ought to be upheld
and it becomes unnecessary to deal
with the merits of the matter.
[11] The application is
dismissed with costs.
___________
____
A. SIMELANE, AJ
On
behalf
of applicant: Adv. N. du Preez
Instructed
by:
Strydom
& Bredenkamp Attorneys
p/a
E G Cooper Majiedt Inc.
BLOEMFONTEIN
On
behalf of
respondents: Adv.
H J Benade
Instructed
by:
Steenkamp
De Villiers & Coetzee Inc.
BLOEMFONTEIN
/sp