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[2025] ZAFSHC 353
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K2011148986 (South Africa) Pty Ltd t/a Nashua Bethlehem v Country Meat Market Pty Ltd (5292/2021) [2025] ZAFSHC 353 (10 November 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
Case no: 5292/2021
In
the matter between
K2011148986
(SOUTH AFRICA) PTY LTD
PLAINTIFF
t/a
NASHUA BETHLEHEM
[Registration
number: 2011/148986/07]
and
COUNTRY
MEAT MARKET (PTY) LTD
FIRST
DEFENDANT
[Registration
number: 2013/071707/07]
HAROLD
ADRIAN LEACH
SECOND
DEFENDANT
STEFAN
SMIT
THIRD
DEFENDANT
Neutral
citation:
K2011148986
(South Africa) Pty Ltd t/a Nashua Bethlehem v Country Meat Market Pty
Ltd
(5292/2021) [
2025] ZAFSHC
353
(10 November 2025)
Coram:
DANISO, J
Heard:
3 & 4 June 2025
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII
and
Caselines. The date and time for hand-down is deemed to be 14h00 on
10 November 2025.
Summary:
Rectification of a master rental agreement -
common mistake between the parties relating to the description of the
contracting party
proven - rectification granted - liability of
sureties for a liquidated company established – plaintiff’s
claim upheld.
ORDER
1
The master rental agreement concluded by
the parties and the deed of suretyship executed by the third
defendant on 24 June 2020
is rectified by the deletion of the words
‘Country Meat Market CC registered under 2000/075457/83’
and replaced with
the words ‘Country Meat Market (Pty) Ltd with
registration number registration number: 2013/071707/07’
wherever they
appear.
2
The second and third defendants are ordered
jointly and severally, one paying the other to be absolved, to pay
the plaintiff:
2.1
R312 341.00 (THREE HUNDRED AND TWELVE THOUSAND THREE HUNDRED AND
FORTY-ONE RAND) together with interest
at the rate of 6% interest
above prime rate per annum calculated from the date which the
plaintiff acquired the right to claim
from the defendants until date
that payment is received.
2.2
R1 000 455.92 (ONE MILLION FOUR HUNDRED AND FIFTY-FIVE RAND AND
NINETY-TWO CENTS) together with interest
at the rate of 6% interest
above prime rate per annum calculated from the date which the
plaintiff acquired the right to claim
from the defendants until date
that payment is received against delivery by the plaintiff to the
defendants of the repossessed
goods.
2.3
Costs of suit on attorney and client scale.
3
Contingent upon the second and third
defendants satisfying the judgment debt as set out in paras 2.1 and
2.2 above, the ownership
of the goods as specified under paragraph E1
of the particulars of claim shall be transferred to the second and
third defendants.
4
In the event that the second and third
defendants fail to satisfy the judgment debt (paras 2.1 and 2.2
above) and to the extent
that the second and third defendants have
not done so already, the second and third defendants are ordered to
immediately return
to the plaintiff the goods as specified under
paragraph E1 of the particulars of claim.
5
The plaintiff is granted leave to approach
the court to quantify any damages to the rented goods that may be
discovered upon their
return to the plaintiff.
JUDGMENT
Daniso J
[1]
On 9 March 2017, the second defendant as the director of the first
defendant signed a master rental
agreement (the 2017 MRA) pertaining
to the rental of various office equipment from the plaintiff for a
period of sixty (60) months
at a monthly rental amount of R15 800.40.
Additionally, he signed a deed of suretyship in terms of which he
bound himself personally
as co-principal debtor with the first
defendant in respect of the latter’s obligations under the 2017
MRA.
[1]
The agreement was due to
expire in 2022, however, in 2020 the first respondent breached the
terms of the agreement by failing to
pay the installments.
Consequently, on 24 June 2020, the third defendant as first
defendant’s financial manager signed another
MRA (the 2020 MRA)
for the rental of office equipment comprising of nine IM350 printers,
a Nashua PABX and CCTV cameras (the goods)
from the plaintiff for a
period of sixty (60) months at a monthly rental of R17 250.00. The
third defendant stood surety for the
first respondent’s
debt.
[2]
About six months later,
the first defendant fell into arrears with the monthly rentals and
subsequently stopped further installments.
As of 31 August 2021, the
amount due by the first defendant was R312 341 00.
[2]
Clause 9 of the 2022 MRA entitles the plaintiff to claim all arrears
including damages for the
unexpired term of the agreement and take to
possession of the goods in the event of breach of any of the terms of
the agreement.
It is in that regard that the plaintiff has instituted
this action against the defendants jointly and severally for the
payment
of R312 341. 00 as arrear rentals, R1 000 455.92 future
rentals and the return of the rented goods. The plaintiff also seeks
rectification
of the 2022 MRA and the deed of suretyship consequent
thereon to reflect the correct description of the first defendant by
deleting
the words ‘Country Meat Market CC registered under
2000/075457/83 and replacing it with ‘Country Meat Market (Pty)
Ltd with registration number registration number: 2013/071707/07’.
[3]
In the plea, the claim is resisted on the grounds that the 2022 MRA
was concluded with a different
entity as it refers to the first
defendant as a close corporation instead of a company. The quantum
claimed as damages is disputed
on the grounds that the amount has not
been properly calculated and the plaintiff has also failed to
mitigate its damages.
[4]
At the commencement of the proceedings, plaintiff’s counsel Mr.
Van Aswegen rose to state
that the first defendant has since been
liquidated and as a result, plaintiff will only be proceeding against
the second and third
defendants as sureties for the first defendant’s
unpaid debts and a judgment by default will be sought against the
third
defendant as he was absent. The third defendant was duly served
with the notice of setdown of the trial, he informed the plaintiff’s
attorney that he will not be appearing in court.
[5]
The second defendant appeared in person. On his request, the matter
stood down for the purpose
of either a settlement or an application
for a postponement. On resumption of the proceedings, the parties
indicated that a settlement
could not be reached with the result that
second defendant applied for the postponement in order to apply for
legal aid. It was
the second defendant’s submission that his
erstwhile attorney only informed him on 30 May 2025 that he will no
longer be
representing him due to his (the second defendant’s)
lack of funds.
[6]
The application was opposed on the grounds that it was brought very
late and this is despite the
fact that the second defendant has been
representing himself since 2 November 2022 when the defendants’
attorney withdrew
as attorney of record. Following the withdrawal of
their attorney, on 28 August 2023, the second and third defendants
appeared
in person for a pretrial conference. Since then, the second
defendant did not seek alternate legal representation. The second
defendant
was served with the notice of setdown on 20 January 2025.
He waited till the date of trial to apply for a postponement, at no
stage
before then did he inform the plaintiff of his intention to
seek a postponement of the matter. On his own submission, he is not
in a financial position to compensate the plaintiff for the
inconvenience that will be occasioned by a postponement.
[7]
The principles applicable in the determination of applications of
this nature are trite: postponements
are not merely for the taking.
The application must be made timeously and properly motivated, where
the application is made late
the delay must be explained with
sufficient particularity to enable the court to assess whether it is
bona fide or it is simply
a delaying tactic. The second defendant’s
financial means to compensate the plaintiff for the prejudice caused
by the postponement
of the trial is also a factor that the court also
takes into account including the second defendant’s prospects
of success
in defending the action.
[8]
Having heard the submissions by the respective parties, I held that
there was an extreme and unexplained
delay in bringing the
application. The delay in not seeking legal aid for a period of over
two years from the date of withdrawal
of the erstwhile attorney is
extreme and the period of over four months from the date of service
of the notice of setdown on 20
January 2025, to the date of trial on
3 June 2025 provided the second defendant with ample time to seek
alternative legal representation.
The fact that the second defendant
cannot compensate the plaintiff for the delay of the trial including
the bare denials of liability
as deliberated in the plea militated
against granting of the postponement of the trial. Resultantly, the
application for a postponement
was dismissed with costs. The second
defendant proceeded in person.
[9]
Mr. Rikus Kruger gave evidence for the plaintiff’s case. He
testified about the circumstances
under which the 2020 MRA was
concluded. He testified that he is the plaintiff’s sale
director and he represented the plaintiff
during the conclusion of
the 2020 MRA. Pursuant to the first defendant’s breach of the
2017 MRA, he tried to contact the
second defendant over his telephone
regarding payment of the arrears to no avail. Eventually on 27 May
2020, he transmitted an
email to the third defendant and was informed
that the first defendant could no longer afford the installments due
to Covid-19
related financial difficulties. A request was made for
the 2017 MRA to be reviewed to enable the first defendant to afford
the
installments. He was also informed that the first defendant’s
financial situation is due to improve as another branch has
been
opened in Mthatha. The third defendant’s email in that regard
followed on the same day stating the following:
‘
Hi
Adrian het gese hy sal
met jou gesels oor die betaling.
Ons kan die kontrak
hersien ek is net baie besig die week kans ons dalk volgende week n
afspraak maak.
Dankie’
[10] In
order to assist the first defendant, he proposed a review and
replacement of the 2017 MRA with the 2020
MRA which entailed a
settlement of the amounts due in the 2017 MRA, affords the first
defendant with a three-month payment holiday
and a saving of about
R10 000. The third respondent confirmed the revised terms of the
agreement in the email dated 18 June 2020
in which he wrote:
‘
Okay
die nuwe kontrak lyk inorde ons kan hom teken’.
[11] It
was his testimony that the second defendant was still away in George.
He signed a resolution authorizing
the third defendant to sign the
2020 MRA on behalf of the first defendant.
[12] He
was adamant that the contracting parties in the 2020 MRA agreement
are the plaintiff and the first defendant.
The 2020 MRA is
essentially an upgrade of the 2017 MRA which correctly refers to the
first defendant as a company. He further stated
that the goods were
also delivered at the first defendant’s address, the third
defendant signed the delivery note confirming
not only the delivery
but also the installation of the goods at the first defendant’s
business premises. The reference to
the first defendant as a close
corporation 2020 MRA is simply an error, he has no knowledge how the
error came about as the agreement
was prepared by the plaintiff’s
administration staff.
[13]
Under cross-examination he confirmed that the pursuant to the breach,
70% of the goods were returned to the
plaintiff where they are kept
until the case is finalized.
[14]
The second defendant was the only witness who testified for the
defendants’ case. He admitted the terms
of the conclusion of
the 2017 MRA including the deed of suretyship. He denied liability in
respect of the 2020 MRA on the basis
that the first defendant is not
a close corporation but a company. The description of the first
defendant as a close corporation
on the 2020 MRA is not a mistake
common to the parties but proof that the agreement involved a
different entity.
[15] It
was also his testimony that he was not present when 2020 MRA was
negotiated and subsequently signed by
the third defendant on behalf
of the first defendant and stated that the third defendant probably
used his electronic signature
to sign the resolution authorizing the
him to conclude the agreement in his absence as he only became aware
of the 2020 MRA when
he received the summons.
[16]
Delivery of goods is also disputed because the goods were delivered
at a close corporation’s business.
He pointed out that the
plaintiff has also not lodged its claim against the liquidator and on
Mr. Kruger’s version 70% of
the goods were returned to the
plaintiff. Except to say that the goods are kept until the case is
finalized Mr. Kruger was
not clear about their whereabouts or
whether they were rented to another customer or not.
[17]
Under cross-examination, the second defendant confirmed that he was
the sole director of the first defendant
trading at the address
indicated in the 2020 MRA. He explained that the first defendant
previously traded as a close corporation
until about the year 2013.
In 2020 it had been closed and a company was formed. Regarding the
deed of suretyship when he signed
it, he was under the impression
that he was binding himself for the amount owed by the first
defendant in 2017 and not for future
liabilities.
[18]
That was in short, the summary of the evidence presented for the
parties. There is no material or significant
disagreement between the
evidence tendered by the parties’ witnesses on the essential
terms of the 2020 MRA relied upon by
the plaintiff.
[19]
A mistake in drafting an agreement including the
misdescription
of
a party can be cured with rectification to reflect the true agreement
between the parties. The onus is on the party claiming
rectification
to adduce evidence on a preponderance of probabilities that through a
mistake in the drafting of the agreement, the
agreement does not
reflect the common intention of the contracting parties.
[3]
[20]
Mr. Kruger rendered a concise and convincing version regarding the
circumstances under which the 2020 MRA
was concluded. His testimony
that the agreement arose from a clear intention between the parties
to conclude the agreement is corroborated
by the second defendant’s
own testimony that at the time the agreement was concluded the first
defendant was no longer trading
as a close corporation but a company
including the undisputed facts that both parties performed in terms
of the agreement in that
the plaintiff delivered the rented goods to
the first defendant’s business premises the instalments were
paid until the first
defendant fell into arrears.
[21]
Inexplicably, the second defendant sought to dispute the validity of
the 2020 MRA and the plaintiff’s
performance whilst also
asserting that he was not privy to the circumstances under which the
agreement was concluded and the delivery
of goods was acknowledged by
the third defendant. The belated defence of not having signed the
resolution also does not assist
the second defendant as besides not
having pleaded it, no evidence was adduced to prove the circumstances
under which his signature
was appended on the resolution.
[22]
The bare denial of the existence of the mistake also does not assist
the defendants’ case as
for
the plaintiff to be successful in its claim for rectification it is
also sufficient that the
mistake
might have been that of one party.
[4]
Taking
into consideration the facts of this matter, I am satisfied that the
plaintiff’s claim for rectification has been established
on a
balance of probabilities.
[23]
The issue of whether the first defendant is indebted to the plaintiff
has also been resolved by Mr. Kruger’s
testimony duly
corroborated by a certificate of balance which the parties agreed
that it would constitute prima facie proof of
the amounts due by the
first defendant.
[5]
Except for
the defendants’ contradictory and untenable versions directed
at the validity of the agreement, no facts have
been set out upon
which they contend that the arrears claimed are not due. A debt is
after all, fulfilled and extinguished through
payment.
[6]
[24]
Regarding the second and third defendant’s liability, it is
clear from the deeds of suretyships that
they cover the first
defendant’s present and future obligations. The relevant parts
read as follows:
‘
DEED
OF SURETYSHIP
1.
…
2.
The Surety/ies hereby bind
himself/themselves, jointly and severally with the Principal Debtor;
to the Creditor as Surety/ies and
Co-Principal Debtor with the
Principal Debtor/s for:
2.1.
the due and punctual payment by the Principal Debtor of all monies of
whatsoever; nature which
may become due and owing from time to time
by the Principal Debtor to the Creditor arising from any cause of
whatsoever nature;
2.2.
the due and proper performance by the Principal Debtor of all the
Principal Debtor’s obligations
to the creditor of any nature
whatsoever which the Principal Debtor may now or in the future be
obliged to perform;
2.3.
…
3.
This Deed of Suretyship is subject to the following terms and
conditions:
3.1.
the same shall operate as a continuing covering security for any
present or future indebtedness
of Principal Debtor to the Creditor
and shall remain of full force and effect notwithstanding any
fluctuation in, or even temporary
extinction of, such indebtedness.
3.2.
…
5.
The Surety/ies hereby renounces the benefits of the legal exceptions
“non
cause debiti”, “errore calculi”,
“excussion”, “division”, “de duobus vel
pluribus
reis debendi”, “no value-received” and
“revision of accounts”. The Surety/ies acknowledges that
he
is fully acquainted with the meaning and effect of all the
abovementioned legal exception and that renunciations of the benefits
of these exceptions is based upon full knowledge and understanding of
the meaning of such exceptions and the consequences of renunciations
of the benefits thereof.’
[25]
There is no merit to the second defendant’s contention that the
plaintiff ought to have lodged a claim
against the liquidators
instead of pursuing the sureties. The law is trite on this aspect:
the creditor can claim directly from
the sureties when the company’s
debt becomes due without having to recover the debt from the company
or in this case, its
liquidators.
[7]
[26]
With regard to the quantification of damages, it came to light during
trial that the plaintiff has since
recovered about 70% of the goods.
It was submitted by Mr. van Aswegen that in the event that
the court finds in favour
of the plaintiff for payment of arrears and
future rentals, the plaintiff tenders the ownership of the goods to
the defendant’s
contingent upon the defendants satisfying the
judgment debt otherwise, the defendants must be ordered to return the
goods.
[27]
Based on all these reasons above, I have come to a conclusion that
the plaintiff has adduced sufficient evidence
to prove its claim
against the second and third defendants on a preponderance of
probabilities. The defences raised by the defendants
have been merely
contrived as an afterthought to avoid liability. It follows therefore
that the plaintiff’s case ought to
prevail.
Costs
[28]
With regard to costs, there is no
reason why the costs should not follow the result.
Order
[29]
The order that I issue is the following:
1
The master rental agreement concluded by
the parties and the deed of suretyship executed by the third
defendant on 24 June 2020
is rectified by the deletion of the words
‘Country Meat Market CC registered under 2000/075457/83’
and replaced with
the words ‘Country Meat Market (Pty) Ltd with
registration number registration number: 2013/071707/07’
wherever they
appear.
2
The second and third defendants are ordered
jointly and severally, one paying the other to be absolved, to pay
the plaintiff:
2.1
R312 341.00 (THREE HUNDRED AND TWELVE THOUSAND THREE HUNDRED AND
FORTY-ONE RAND) together with interest
at the rate of 6% interest
above prime rate per annum calculated from the date which the
plaintiff acquired the right to claim
from the defendants until date
that payment is received.
2.2
R1 000 455.92 (ONE MILLION FOUR HUNDRED AND
FIFTY-FIVE RAND AND NINETY-TWO CENTS) together with interest at the
rate of 6% interest
above prime rate per annum calculated from the
date which the plaintiff acquired the right to claim from the
defendants until date
that payment is received.
2.3
Costs of suit on attorney and client scale.
3
Contingent upon the second and third
defendants satisfying the judgment debt as set out in paras 2.1 and
2.2 above, the ownership
of the goods as specified under paragraph E1
of the particulars of claim shall be transferred to the second and
third defendants.
4
In the event that the second and third
defendants fail to satisfy the judgment debt (paras 2.1. and 2.2.
above) and to the extent
that the second and third defendants have
not done so already, the second and third defendants are ordered to
immediately return
to the plaintiff the goods as specified under
paragraph E1 of the particulars of claim.
5
The plaintiff is granted leave to approach
the court to quantify any damages to the goods that may be discovered
upon their return
to the plaintiff.
NS DANISO
JUDGE OF THE HIGH
COURT
Appearances
For
the plaintiff:
W
A Van Aswegen
Instructed
by:
Breytenbach
Mavuso Inc, Bethlehem
c/o
Peyper Attorneys
Bloemfontein
For
the first defendant:
No
appearance
For
the second defendant:
In
Person
For
the third defendant:
No
appearance
[1]
Exhibit
‘A1’.
[2]
Exhibit
‘B’.
[3]
Harms
Amler’s
Precedents of Pleadings
6ed
(2003) page 298-299 and the applicable authorities quoted therein.
[4]
Brits
v van Heerden
2001
(3) SA 257 (C)
at
282C.
[5]
Clause
11 of the 2020 MRA.
[6]
Brayton
Carlswald (Pty) Ltd and Another v Brews
[2017]
ZASCA 68
;
2017
(5) SA 498
(SCA) para 19.
[7]
Consolidated
Textile Mills LTD v Weiniger
1961 (3) SA 335 (O)
at
338C;
BOE
Bank Limited v Bassage
[2006]
SCA 50
(RSA)
2006
(5) SA 33
(SCA);
[2006] 4 All SA 105
(SCA) paras 3 and 11.