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South Africa: Western Cape High Court, Cape Town
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[2008] ZAWCHC 254
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Boyes v Moser and Another (10185/2003) [2008] ZAWCHC 254 (28 August 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE THIRD
DIVISION)
CASE NO
:
10185/2003
DATE
:
28
AUGUST 2008
In
the matter between:
SMITH
TABATHA BUCHANAN
BOYES
PLAINTIFF
and
JOHAN
EDUARD MOSER
1
st
RESPONDENT
BRAINWAVE
PROJECTS 1129
CC 2
nd
RESPONDENT
ORDER
CLEAVER.
J
:
This
is an application for summary judgment in which the plaintiff sues
on the strength of an acknowledgment of debt. It is apparent
from
the particulars of claim thai the acknowledgment of debt was
achieved as a compromise after the plaintiff had initially
claimed a
larger amount in respect of professional fees rendered to the
defendant. The particulars of claim contain details to
this effect
and that is not denied.
The
defence raised on behalf of the defendant is firstly that he places
the amount set out in the acknowledgment of debt in dispute
as he
says that it is excessive and should be subject to taxation. In my
view there is no merit whatsoever in this submission,
once the
defendant has signed an acknowledgment of debt the need for taxation
falls away.
The
next, and only point really raised was that he had signed the
acknowledgment of debt under duress, alleging that he had been
told
that unless he signed the acknowledgment of debt steps would be
taken to sequestrate him. As pointed out by plaintiffs counsel
the
defendant had told the plaintiff that he was unable to pay the
amount claimed at the time, thus indicating that he had in
fact
committed an act of insolvency. In the circumstances the submissions
that he had signed under duress have no legal basis.
Another
point made was that the acknowledgment of debt having referred to
payment which was due to him from a development, indicated
that the
agreement between him and the plaintiff was that he could continue
to expect grace to be given to him to pay until the
development was
completed. On this basis it would seem to me that he might be able
to avoid payment forever if the development
was not completed.
That clearly cannot be reconciled with the clear
undertaking to pay out of the first management
fees which were due,
or by a stated date.
in
the circumstances there will be
JUDGMENT
FOR THE PLAINTIFF, WITH COSTS.
CLEAVER,
J