Bright Focus CC and Another v Bam (426/2007) [2007] ZAFSHC 123 (1 November 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2007
>>
[2007] ZAFSHC 123
|

|

Bright Focus CC and Another v Bam (426/2007) [2007] ZAFSHC 123 (1 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 426/2007
In the
case between:-
BRIGHT
FOCUS CC
First
Applicant
MARCUS
COETZEE
Second
Applicant
and
MARTHINUS
JOHANNES BAM
Respondent
_____________________________________________________
HEARD
ON:
18
OCTOBER 2007
_____________________________________________________
JUDGMENT
BY:
MABESELE,
AJ
_____________________________________________________
DELIVERED:
1
NOVEMBER 2007
_____________________________________________________
[1] This
is an opposed application for the rescission of a default provisional
judgment which was granted against the first and second
applicants on
16 August 2007.
[2] The first and second
applicants, who were cited as the first and second defendants in the
main action, are sued on the basis of
an acknowledgement of debt in
terms of which the second applicant, who also acted on behalf of the
first applicant, acknowledged
indebtedness to the respondent in an
amount of R650 000,00. The second applicant is the sole member of
the first applicant, a close
corporation, which is registered in
terms of the Close Corporation Act.
[3] According
to the document which was signed by the second applicant, the second
applicant undertook to pay the said amount in monthly
instalments of
R325 000,00 per month.
[4] The document also
provided that, should the second applicant fail to pay any one such
instalment on its due date, the full outstanding
balance would
immediately become due and payable and the respondent may take any
legal action against the second applicant, arising
from the said
document.
[5] The
respondent opposed this application on two grounds. Firstly, that,
the second applicant did not show sufficient cause for
failure to
appear in court on 16 August 2007. Secondly, the first and second
applicants have no
bona
fide
defence.
[6] The second applicant
stated, firstly, that he did not appear in court, on 16 August 2007,
to defend the claim against him because
he thought that his legal
representative would appear on his behalf. He stated that he only
became aware on 18 August 2007, that
his legal representative did not
appear in court on 16 August 2007.
[7] In paragraph 13 of
the founding papers, the second applicant stated as follows:
“
Ek was derhalwe geskok toe ek op
Saterdag 18 Augustus 2007 ‘n kennisgewing per geregistreerde pos by
my adres ontvang tot die effek
dat my prokureur, Mnr. Vermaak, as
prokureur van rekord aan die saak onttrek het. Hierdie kennisgewing
van onttrekking is gedateer
14 Augustus 2007, naamlik, twee dae
voordat die saak aangehoor sou word ...”
[8] The
second applicant stated that he would have appeared in court on the
said date had he known that his legal representative would
not
attend.
[9] On the contrary, Mr.
Vermaak stated in his affidavit that he warned the second applicant
per letter dated 10 August 2007 of his
intention to withdraw as his
attorney of record, should the second applicant fail to pay a deposit
of R7 500,00 before 16 August
2007.
[10] The
letter reads:
“
Ten spyte van verskeie telefoniese
versoeke om die tjek wat deur die bank gemerk is ‘verwys na
trekker’ te vervang met kontant,
bly u in versuim .
Hiermee
ons koste rekening tot datum en ontvang ons betalings binne 7 dae na
datum van hierdie skrywe, by gebreke waarvan ons dagvaarding
sal
uitreik vir die verhaal daarvan.”
[11] In
the above quoted letter, Mr. Vermaak made no indicating of his
withdrawal as the second applicant’s attorney of record.
[12] Mr. Vermaak sent his
notice of withdrawal to the second applicant, per registered letter
dated 14 August 2007, which letter the
second applicant received on
18 October 2007. In my view, Vermaak did not inform the second
applicant timeously of his withdrawal
as attorney of record.
Therefore, there is merit in the second applicant’s explanation for
his failure to appear in court on 16
August 2007.
[13] The
second applicant resists the main action on the basis of
misrepresentation, which he alleges the respondent made to him,
as a
result of which he entered into an agreement of sale with Calandra
Trading CC and subsequently signed an acknowledgement of
debt.
[14] The
second appellant stated that he purchased collection contracts from
the Calandra Trading CC, which was represented by the
respondent,
after he was made to believe of the success of the business. But it
emerged later that the said business was running
at the loss.
[15] The
claim against the first and second applicants is based on the
unconditional acknowledgement of indebtedness for an ascertained
amount of money.
[16] With
regard to a debt acknowledged unconditionally, Wessels JA, in
RICH
AND OTHERS v LAGERWEY
1974 (4) SA 748
(A) at 754G – H stated:
“
...
If
the document in question, upon a proper construction thereof,
evidences by its terms, and without resort to evidence extrinsic
thereto, is an unconditional acknowledgment of indebtedness in an
ascertained amount of money, the payment of which is due to the
creditor, it is one upon which provisional sentence may properly be
granted.”
(See
also
JENKINS
v DE JAGER
1993 (4) SA 534
(N).)
[17] The
second applicant signed an unconditional acknowledgement of
indebtedness in an amount of R650 000.00, the payment of which
is due
to the respondent.
[18] In
the light of what has been stated in
RICH
AND OTHERS v LAGERWEY
,
supra
,
I am of the view that the first and second applicants may not sustain
the respondent’s claim should the matter proceed to trial.

Therefore, the application should be dismissed.
[19] In
the premises, I make the following order:
The application is
dismissed.
The first and second
applicants are ordered to pay costs.
__________________
M.M. MABESELE, AJ
On
behalf of applicants: Adv. P.J. Loubser
Instructed by:
Callis
Attorneys
60
Park Road
Tourism
Bureau
2
nd
Floor
Willows
BLOEMFONTEIN
Ref.
J A Callis/fic/SHC014
On behalf of
respondent: Adv. C. Snyman
Instructed
by:
Krohn Attorneys
1
st
Floor
Forum Building
Aliwal
Street
BLOEMFONTEIN
/sp