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2024
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[2024] ZANCHC 105
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Gouws and Others v Spar Group Limited (187/2022) [2024] ZANCHC 105 (15 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 187/2022
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
DANIEL
CHRISTIAN GOUWS
1
st
Excipient
MARIA
LORDES GOUWS
2
nd
Excipient
SHAUN
ARMAND
GOUWS
3
rd
Excipient
ANDREW
GERHARDUS GOUWS
4
th
Excipient
CHRISTOPHER
DANIEL GOUWS
5
th
Excipient
and
THE
SPAR GROUP LIMITED
Respondent
In
Re:
THE
SPAR GROUP
LIMITED
Plaintiff
and
DANIEL
CHRISTIAN GOUWS
1
st
Defendant
MARIA
LORDES GOUWS
2
nd
Defendant
SHAUN
ARMAND
GOUWS
3
rd
Defendant
ANDREW
GERHARDUS GOUWS
4
th
Defendant
CHRISTOPHER
DANIEL GOUWS
5
th
Defendant
Coram:
Lever J
JUDGMENT
Lever
J:
1.
The respondent/plaintiff (plaintiff) instituted an action in this
matter claiming relief against the
excipients/defendants (defendants)
in their capacities as sureties for the principal debtor. The
principal debtor relevant to this
matter is an entity named Henque
3675 CC. The principal debtor was a franchisee of the plaintiff. The
defendants bound themselves
as sureties for the obligations of the
principal debtor to the plaintiff.
2.
The principal debtor provided three notarial bonds which were
registered over its movables. The said
registered notarial bonds are
annexed to the Particulars of Claim as annexures “J”, ”K”
and “L”
respectively.
3.
On 23 October 2015, and in this court, the plaintiff obtained an
order perfecting each of the relevant
notarial bonds. A copy of the
said Order is annexed to the Particulars of Claim as annexure “M”
(the perfection Order).
4.
Subsequent to the perfection Order, the plaintiff took possession of
the relevant assets. Then, purportedly
in terms of the said
perfection Order as read with the relevant notarial bonds, the
plaintiff proceeded to run the business described
as River City SPAR
and River City TOPS at the corner of Park and Scott Streets,
Upington. In the process of running this business,
the said business
was granted credit by the plaintiff for,
inter alia,
the
SUPERSPAR warehouse account, seasonal account, and the drop shipment
account as well as the TOPS warehouse and drop shipment
accounts.
5.
Further, the plaintiff, also purportedly acting under the terms of
the perfection Order as read with
the relevant notarial bonds, opened
a bank account in the plaintiff’s name, with overdraft
facilities, for the purpose of
covering the necessary expenses in
running the relevant business.
6.
The plaintiff claimed that the principal debtor was liable to pay for
these ‘necessary expenses’
related to the various
warehouse accounts, drop shipment accounts, and the said overdraft
facility. Furthermore, that the sureties
by virtue of the suretyship
agreement were liable to stand good for the respective amounts due by
the principal debtor.
7.
The plaintiff then sold the relevant business, as it was authorised
to do in terms of the notarial bonds,
and together with a credit owed
by the SPAR Traders Guild, set off the purchase price against the
debts due in respect of the various
deliveries of goods and the
outstanding balance of the overdraft. This left a nett amount due by
the principal debtor of R9,523,016.51
(nine million five hundred and
twenty-three thousand and sixteen Rand and fifty-one cents). This is
the amount the plaintiff claims
from the five defendants as sureties,
jointly and severally, the one paying the others to be absolved.
8.
The defendants have excepted to this claim as being vague and
embarrassing or lacking the averments necessary
to sustain a cause of
action. The plaintiff was given an opportunity to remove the various
causes of complaint. The plaintiff did
not do so, and the defendants
filed their exception on 3 February 2023. Then the plaintiff filed a
Notice of Intention to amend
dated 19 July 2023. The defendants
objected to the proposed amendments on 2 August 2023.
9.
It was agreed at the hearing hereof that I would not determine the
proposed amendments and that should
I uphold any of the exceptions,
the plaintiff will then be afforded an opportunity to move an
amendment of its Particulars of Claim
in accordance with any finding
I might make in regard to the exceptions. The proposed amendments
will only be discussed to the
extent that they are interwoven with
the arguments raised regarding the exceptions.
10.
Mr Schreuder SC, who appeared for the defendants/excipients,
indicated that he was not pursuing the exceptions relating to the
non-joinder of the principal debtor and the Guild, and certain other
exceptions apart from the one indicated below.
11.
The nub of the exception that remained is that the plaintiff did not
set out a basis for continuing to trade after the perfection
of the
relevant notarial bonds in the manner that it conducted such trade.
Further, that being so, the plaintiff had not pleaded
or established
a factual basis that allowed it to open and operate an overdraft
facility for necessary expenses in continuing to
trade after the
perfection Order.
12.
Mr Schreuder argued this issue on the basis that the Particulars of
Claim did not set out a cause of action allowing the
plaintiff/respondent
to continue to trade as it did, and open the
aforesaid overdraft facility in the plaintiff’s own name, and
ultimately hold
the sureties liable to cover what amounts to a net
loss resulting from the sale of the business, the outstanding amount
on the
said overdraft, the outstanding amounts of certain accounts
which the plaintiff/respondent incurred after the perfection of the
notarial bonds concerned, and the passing of certain credits in
favour of the principal debtor.
13.
Even though the said exception set out in the alternative that the
relevant allegations were also vague and embarrassing, this
was not
argued on behalf of the excipients/defendants. Accordingly, I shall
only deal with this issue on the basis on which it
was argued.
14.
A very
useful summary of some of the general principles applicable to
evaluating exceptions has been set out by Makgoka J in the
matter of
Living
Hands (Pty) Ltd & Another v Ditz & Others
[1]
,
which reads as follows:
“
[15]
Before I consider the exceptions, an overview of the applicable
general principles distilled from case law is necessary:
(a)
In considering an exception that a pleading does not sustain a cause
of action, the
court will accept, as true, the allegations pleaded by
the plaintiff to assess whether they disclose a cause of action.
(b)
The object of an exception is not to embarrass one’s opponent
or to take advantage
of a technical flaw, but to dispose of the case
or a portion thereof in an expeditious manner, or to protect oneself
against an
embarrassment which is so serious as to merit the costs
even of an exception.
(c)
The purpose of an exception is to raise a substantive question of law
which may have
the effect of settling the dispute between the
parties. If the exception is not taken for that purpose, an excipient
should make
out a very clear case before it would be allowed to
succeed.
(d)
An excipient who alleges that a summons does not disclose a cause of
action must establish
that, upon any construction of the particulars
of claim, no cause of action is disclosed.
(e)
An over-technical approach should be avoided because it destroys the
usefulness of the exception
procedure, which is to weed out cases
without legal merit.
(f)
Pleadings must be read as a whole and an exception cannot be taken to
a paragraph
or a part of a pleading that is not self-contained.
(g)
Minor blemishes and unradical embarrassments caused by a pleading can
and should be cured by further
particulars.” (references
omitted)
15.
The above
summary by Makgoka J was quoted with approval by Maier-Frawley J who
expanded on the said principles in the case of
Merb
(Pty) Ltd & Others v Matthews & Others
[2]
,
as follows:
“
9.
Exceptions are also not to be dealt with in an over-technical manner,
and as such, a court looks
benevolently instead of over-critically at
a pleading.
10.
An excipient must satisfy the court that it would be
seriously
prejudiced
if the offending pleading were allowed to stand, and
an excipient is required to make out a very clear, strong case before
the
exception can succeed.
11.
Courts have been reluctant to decide exceptions in respect of fact
bound issues.
12.
Where an exception is raised on the ground that a pleading lacks
averments necessary to sustain a cause
of action, the excipient is
required to show that upon every interpretation that the pleading in
question can reasonably bear,
no cause of action is disclosed. It is
trite that when pleading a cause of action, the pleading must contain
every fact which would
be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment (facta
probanda). The facta probanda
necessary for a complete and properly
pleaded cause of action importantly does not comprise every piece of
evidence that is necessary
to prove each fact (being the facta
probantia) but every fact which is necessary to be proved.
13.
An exception to a pleading on the ground that it is vague and
embarrassing requires a two-fold consideration:
i) whether the
pleading lacks particularity to the extent that it is vague; and (ii)
whether the vagueness causes embarrassment
of such a nature that the
excipient is prejudiced in the sense that he/she cannot plead or
properly prepare for trial. The excipient
must demonstrate that the
pleading is ambiguous, meaningless, contradictory or capable of more
than one meaning, to the extent
that it amounts to vagueness, which
vagueness causes embarrassment to the excipient.” (references
omitted)
16.
The principles set out above apply to both exceptions which are based
on the pleadings being ‘vague and embarrassing’
and those
where it is alleged the pleading concerned does not disclose a cause
of action or a defence. In the present case, only
those principles
applicable to an exception based on a contention that the Particulars
of Claim do not disclose a cause of action
will be applied.
17.
As set out above, the principal debtor passed three notarial bonds in
favour of the plaintiff. These notarial bonds were perfected
by the
plaintiff on 23 October 2015.
18.
The plaintiff in its claim relies upon the terms of the notarial
bonds as read with the order perfecting its security under
the said
notarial bonds for its claim to be entitled to run the business of
the principal debtor after the perfection of the said
notarial bonds.
19.
Two of the said notarial bonds are silent on this question and the
third one deals with this issue in some detail. Mr Schreuder
relies
upon a particular interpretation of these provisions to sustain the
excipients/defendants exception that the respondent/plaintiff
has not
pleaded facts to sustain its cause of action.
20.
The relevant passage of the notarial bond that deals with this issue
reads as follows:
“
3.13.2
forthwith on its own or if needs be through any appropriate Sheriff
of the High Court of South Africa, to enter upon and to attach and/or
otherwise take physical possession and control of the assets
and/or
by itself and/or through its employees and/or through any nominee/s
from time to time appointed by the Mortgagee, and to
possess, and
to
manage
and/or control the assets whilst at the same time (without
in so doing taking over any business being conducted by the Mortgagor
as a going concern in whole or in part unless should be specially
agreed to in writing duly signed on behalf of the Mortgagee)
allowing
the Mortgagor and/or it employees acting in their capacities as
employees of the Mortgagor and in their employment with
the Mortgagor
(and not as employees of the Mortgagee) to continue with
the
conduct, on behalf of the Mortgagor, of any business wherein such
assets are used and/or applied,
and while at the same time
allowing the Mortgagor to utilise the assets in the continued conduct
of such business by the Mortgagor,
but under such management,
possession and control exercised by the Mortgagee or on behalf of the
Mortgagee
by a representative/s and or employee/s of the
Mortgagee,
and to hold and continue with such possession, and any
such management and/or control, for as long as the Mortgagee may deem
fit
in its sole and absolute discretion;”
(My emphasis)
21.
Mr Schreuder for the excipients/defendants relied on the portion of
the above passage that reads: “(without in so doing
taking over
any business being conducted by the Mortgagor as a going concern in
whole or in part unless should be specially agreed
to in writing duly
signed on behalf of the Mortgagee)”. On the strength of this
passage, Mr Schreuder argued that the respondent/plaintiff
had to run
and manage the affairs of the business as the business of the
principal debtor, that being the case, the respondent/plaintiff
was
not entitled to open an overdraft account in the plaintiff’s
own name and apply it to the business of the principal debtor
and
thereafter hold the excipients/defendants liable as sureties for the
debt arising therefrom.
22.
Mr Olivier for the respondent/plaintiff met this argument by
asserting that the excipients/defendants were conflating the
facta
probanda
with the
facta probantia.
Mr Olivier contended
that the respondent/plaintiff had pleaded the necessary facts to
establish its claim under the provisions
of the relevant notarial
bond. Furthermore, whether the respondent/plaintiff had, indeed
agreed to in writing and duly signed on
its behalf, taken over the
principal debtor’s business as a going concern or waived that
requirement was not part of the
facta probanda
but in fact
part of the
facta probantia
.
23.
The respondent/plaintiff is afforded wide- and far-reaching
discretion under the notarial bond. The relevant passages have to
be
interpreted in the context of the principal debtor providing security
for its debts and in the context of the provisions of
the notarial
bond in its entirety.
24.
In my view, Mr Olivier is correct, the excipients/defendants are
conflating the
facta probanda
and the
facta probantia
.
The respondent/plaintiff has pleaded enough to establish its case for
the purpose of the exception. Remembering that for the purpose
of the
exception based on the plaintiff being alleged to have failed to
plead facts to sustain its cause of action, this court
accepts as
correct the contentions pleaded by the respondent/plaintiff. The
excipients/defendants are accordingly entitled to raise
these aspects
again in the plea it might file in the main action. The issues will
then be determined on the facts that are established
at the trial.
25.
In all these circumstances, the exception raised and argued by the
excipients/defendants stands to be dismissed.
26.
Turning now to the question of costs. Under the ordinary rule, costs
would follow the event. In my view, this is an appropriate
case where
costs should follow the event. The excipients/defendants are to pay
the respondent/plaintiff’s taxed or agreed
party-and-party
costs. I believe that it would be appropriate that these costs should
be taxed on scale “B”. The excipients/defendants
are
jointly and severally liable to pay these costs. The one paying the
others to be absolved.
In
the circumstances, the following order is made:
1)
The exception is dismissed.
2)
The costs relating to such exception are to be paid by the
excipients/defendants. Such costs are to be taxed
or assessed on
scale “B”. The excipients/defendants are jointly and
severally liable to pay such costs. The one paying
the others to be
absolved.
L.
G. Lever
Judge
Northern
Cape Division, Kimberley
Representation:
For
the Plaintiff/Respondent:
Adv JL
Olivier
Instructed
by:
Van De Wall
Inc.
For
the Excipients/Defendants:
Adv HC Schreuder (SC)
Instructed
by:
Haarhoffs Attorneys
Date
of Hearing:
18 August 2023
Date
of Judgment:
15 November 2024
[1]
2013 (2) SA 368 (GSJ).
[2]
(2020/15069) [2021] ZAGPJHC 693 (16 November 2021).