IN THE HIG H COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number: 4 892/2022
In the matter between :
MORNE LLEWELLYN LLOYD Applicant
and
PAUL JOHN RICHARDS First respondent
MARIUS MALAN Second respondent
JUDGMENT DELIVERED ON 13 FEBR UARY 2025
VAN ZYL AJ :
Introductio n
1. The applicant seeks an order that the first and second respondents, jointly and
severally, make payment of the amount of R210 142,06, plus interest, as well as
costs on the scale as between attorney and client. The capital amount claimed is
the balance of the purchase price owed by the respondents to the applicant
under a sale agreement concluded between the parties on 1 July 2021 for 100%
OFF'ICE OF THE CHIEF JUSTICE
REPUBLJ C OF SOUTH AFRJ.CA
of the members’ interest in a close corporation running a business known as
At364 Restaurant in Pringle Bay.1
2. Much water has flowed under the bridge since the institution of the application . It
is not necessary to rehash all of the details. It i s by now common cause that the
R210 142,06 claimed should be paid to the applicant. The dispute lies in whether
each of the respondents is liable for 50% of such amount (this is the first
respondent’s argument),2 or whether the two respondents are jointly and
severally liable to the applicant (which is the applicant’s case).
3. There is, in addition, an argument as to who should pay the costs of the
application, whether it should be paid on a punitive scale, and whe ther it should
be paid on the magistrate’s court tariff in light of the quantum of the claim, which
falls well within the jurisdiction of the magistrate’s court.
Are the respondent s jointly and several ly liable towards the applicant ?
4. The applicant’s noti ce of motion in its original form sought payment of the amount
claimed from the respondents jointly. During January 2025 the applicant
amended the notice of motion to seek payment from the respondents jointly and
severally.
5. In the case of joint and several liability (also referred to as solidary co -debtorship)
any one of a number of co-debtors is liable for the full performance. Performance
is due once only and, if one of the debtors pays the full debt, the other s are
reliev ed of liability towards the creditor.3 As a rule, joint and several liability only
arises if it is clear , by express words or necessary implication, that the parties
intended to create it .4 If nothing to the contrary is indicated, then the situation is
one of simple joint debtorship: “A number of persons may bind themselves to
perform something to another … if nothing further is agreed upon, [this] is a case
1 A further claim relating to the respondents’ compliance w ith another obligation under the
agreement was not persisted with.
2 The second respondent did not deliver heads of argument, and did not appear at the hearing.
3 Joubert et al The Law of South Africa Vol. 9 (3ed) at para 348.
4 See Tucker and another v Carruthers 1951 AD 251 ; Elan Boulevard (Pty) Ltd v Fnyn
Investments (Pty) Ltd and others 2019 (3) SA 441 (SCA) at para [17].
of simple joint liability … each joint debtor is liable for his or her pro rata share of
the pe rformance only … This form of co -debtorship … follows as a naturale of
any contract which provides for more than one debtor … (that is, it follows
automatically in the absence of any agreement to the contrary) ”.5
6. There are a few exception s in which joint and several liability is automati c,
flowing from the nature of the contract. These are joint acceptors, drawers , and
endorsers of bills of exchange, sureties who have renounced the benefit of
division, and partners in respect of debts incu rred in the ordinary course of the
partnership business. If nothing to the contrary is provided for in the contract,
and the contract is not one which automatically leads to joint and several liability,
the co -debtors are merely jointly liable.6
7. The applicant argues that, although there is no express indication in the
agreement that the respondents undertook the obligations thereunder jointly and
severally, as opposed to jointly, a consideration of the agreement and its context
indicates that it was the parties’ intention to create joint and several liability .
Counsel referred to the fact that the respondents, as purchasers, have always
acted together, both in performing under the agreement and in corresponding
with the applica nt in relation thereto. They are referred to jointly as “ the
Purchasers ” in the agreement. Counsel argues that, because the respondents
purchased the members’ interest jointly, and because they are jointly referred to
in several clauses of the agreement and in subsequent correspondence, each of
them in fact undertook the duty to render 100% of the performance due under the
agreement . They are thus jointly and severally liable to pay the purchase price to
the applicant.
8. I agree, however, with the first responde nt’s submission that the indicators upon
which the applicant relies in fact point the other way, towards simple co -
debtorship, and not towards joint and several liability. The sale of members’
5 Joubert op cit at para 347; and see Roelou Barry (Edms) Bpk v Bosch 1967 (1) SA 54 (C) , in
which it was held (at 59 -60) that if a creditor sues from several co -debtors without indicating in
the pleadings what amount he wishes to recover from each, it is assumed that he wishes to
recover only a proportionate share from each.
6 Joubert op cit at para 348 ; and see Bradfield Christie’s Law of Contract in South Africa (7ed)
at pp 294-296.
interest agreement is not a type of agreement from which joint and several
liability flows automatically. Clause 4.4 of the agreement expressly stipulates
that each of the respondents purchase s 50% of the members’ interest. Apart
from this stipulation, t hey are referred to jointly (“ the Purchasers ”) throughout the
agreement. They have clearly acted jointly in respect of the business of and
communications regarding the corporation because they each own half of the
members ’ interest therein. All of the contextual references in the agreement
point to the fact that the respondents assumed joint , and not joint and several,
responsibility for the obligations under the agreement. The debt claimed by the
applicant is not indivisible.7
9. Insofar as it mig ht be said that the agreement is ambiguous in this respect
(merely for the sake of argument , since I do not regard the agreement in the
present matter as ambiguous) then there is the general principle that an
ambiguous contract will be interpreted so as to impose the least burden on the
debtors. The presumption that liability is joint , and not joint and several , is a
strong one. It applies even where the co -debtors are associated together in a
joint committee or joint venture falling short of a partnershi p.8 The fact that, as
counsel for the applicant commented, the applicant “ does not care who the
money comes from ”, is not sufficient to displace the presumption.
10. In conclusion , there is nothing in the sale of members’ interest agreement that
points towards the respondents having accepted joint and several, as opposed to
joint, liability thereunder. There is no provision indicating that the respondents
were anything other than co-debtors, and the applicant has not adduced any
evidence to show that it was the parties’ intention to create joint and several
liability.
11. I accordingly find that the respondents are each liable towards the applicant for
50% of the R210 142,06 claimed.
The issue of costs
7 See Bradfield ibid.
8 Bradfield op cit at p 294; Shraga v Chalk 1994 (3) SA 145 (N) at 154B -D.
12. The issue of costs is hotly disputed. The principal question is whether it was
necessary at all to institute the application. The first respondent says that it was
prematurely instituted, and that a costs order should be granted against the
applicant for that reason.
13. The relevant background is, briefly, that prior to the sale of the applicant’s
members ’ interest to the respondents , the applicant financed a vehicle on the
corporation’s name. The applicant subsequently purchased the vehicle from the
corporation and, at the time of the sale of the members ’ interest in July 2021 , the
vehicle was not a corporation asset. The corporation was, however, still the
debtor under the vehicle financing agreement with Wesbank. The applicant paid
the monthly instalments on the corporation’s behalf, and finally settled the entire
outstanding amount on 16 February 2023.9
14. Prior to the settling of the Wesbank debt, and following the conclusion of the sale
of members; interest agreement in July 2021, t he applicant demanded the
balance of the purchase price (being the R210 000, 00-odd claimed in this
application) from the respondents in January 2022.10 There was some
correspondence between the parties, in which the respondents raised the fact
that they regarded the payment as not yet due because the corporation was not
yet debt -free. This was because clause 4.3 of the sale of members’ interest
agreement provided that c orporation and its assets would be debt -free on the
effective date (which was the date of the transfer of the applicant’s members’
interest and claims to the respo ndents). The applicant had also warranted, under
the agreement, that the corporation would have no other debts than the debts
expressly set out in the agreement. The Wesbank debt was not one of the
specified debts.
15. There were negotiations in respect of further debts, which were resolved between
the parties. The respondents remained steadfast regarding payment of the
9 This was explained in a supplementary affidavit which was admitted into the record by
agreement between the parties.
10 The balance of the purchase price having been paid to the applicant.
R210 000,00 . The applicant instituted this application in May 2022 , arguing that
the withholding of the balance of purchase price was not a term of the sale of
members’ interest agreement. The respondents admi tted all along that the
R210 000,00 was owing to the applicant, but den ied that it was due at the time of
the institution of the application because the exist ence of the Wesbank debt
meant that the corporation was not debt -free as agreed between the parties.
16. Under clause 5.6 of the agreement, the total purchase price would be retained
and invested for the benefit of the applicant by an appointed firm of attorneys
until such time as the applicant had signed over all risks and benefits to the
respondents, and further against settlement of all outstanding creditors of the
corporation which came into existe nce before or on the effective date .11
17. The respondents submitted, therefore, that the applicant had failed to ensure that
the corporation was debt -free at the time of the effective date under the sale
agreement . It only became debt -free for the purpose s of the agreement in
February 2023. It was only then that payment of the R210 000,00 fell due.
18. The parties accuse one another of not acting in accordance with the agreement
and the breach terms of the agreement in relation to the Wesbank debt and the
subsequent non -payment of the R210 000,00 . There are further arguments to
the effect that the applicant ignored the alternative dispute resolution process
provided for in clause 1512 of the sale of members’ interest agreement. The
applicant retorts that t he respondents did not invoke section 6 of the Arbitration
Act 42 of 1965 to seek a stay of proceedings. The respondents argue that the
applicant proceeded in the High Court despite the fact that the quantum of his
claim falls well within the jurisdiction of the magistrate’s court.13 The applicant
11 There is no evidence on the papers as to whether the total purchase price was so invested,
and counsel could not eluci date the Court as to the present state of the investment, but given
that the rest of the purchase price (apart from the R210 000,00 in dispute) had in fact been
paid over the applicant I assume that the investment did take place.
12 Providing for mediation and, thereafter, arbitration. Clause 15.2.4 provides, however, that the
parties are not prevented from approaching a court “ for judgment in relation to a liquidated
claim ”.
13 Clause 14.3 of the agreement provides that the “ parties agree to the jurisdiction of the
Magistrate’s Court, despite the fact that the monetary value of a claim may exceed the
jurisdiction of the Magistrate’s Court, but without detracting from the rights of the parties to
approach any competent court wi th jurisdiction including the High Court ”.
submit s that he could not approach the Magistrate Court, despite the quantum of
the claim, because that court does not have jurisdiction over applications such as
the present.14 Both parties seek punitive costs in their favour, because clause
14.2 of the agreement provides for costs orders on the scale as between attorney
and client in the event of litigation arising from a breach of the agreement.
19. Be that as it m ay, o n consideration of the matter as a whole it seems to me that
this is a case where neither si de should be mulcted in the other side’s costs. I
agree with the first respondent that i t was not necessary to institute the
application at the time when it was done. The applicant cannot escape the fact
that the amount owing to Wesbank constituted a debt of the corporation as at the
effective date , even if the applicant himself stood surety for the due payment
thereof. The proper way to resolve the issue at that time was to settle the
corporation’s debt with Nedbank , as the applicant subsequently did in February
2023. It was then that the applicant could lay claim to the balance of the
purchase price.
20. On the other side of the coin, however, the respondents have failed to pay the
R210 000,00 owing, despite acknowledging that it fell due in February 2023. It
has still not been paid. No satisfactory reason for such non -payment appears
from the record. A further two years have since elapsed, and the parties have
continued running up legal costs on an issue that should have been laid to rest
long ago. I was informed from the Bar that the parties had attempted to settle the
matter, without success. When those negotiations failed, the applicant amended
his notice of motion to seek payment of his claim on a joint and several basis. I
have already determined that issue in the respondents’ favour.
21. In the interests of fairness to both parties given the history to this matter and the
parties’ conduct , I am of the view that each of them should be liable for his own
costs of suit.
Order
14 With reference to section 29, read with section 46, of the Magistrates’ Courts Act 32 of 1944.
22. In the circumstances, the following order is granted:
22.1. The applicant’s supplementary affidavit dated 3 April 2023 is admitted
into the record.
22.2. The respondents are jointly liable (in the proportion of 50% each) to the
applicant for payment of the sum of R2 10 142,06, together with interest
thereon at the prescribed legal rate from 17 February 2023 to date of
final payment.
22.3. Each party will pay his own costs of suit .
_______________ _______
VAN ZYL AJ
Appearances:
For the applicant: Mr S. Kelly , instructed by Rynhart Kruger
Attorneys
For the first responden t: Ms R. van Wyk , instructed by Burger
Malherbe Attorneys
No appearance for the second respondent