THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No 359/03
REPORTABLE
In the matter between
FRANS JOHANNES JACOBUS GELDENHUYS APPELLANT
and
EAST & WEST INVESTMENTS (PTY) LTD RESPONDENT
Before: Harms, Navsa, Nugent, Conradie JJA and Comrie AJA
Heard: 9 September 2004
Delivered: 17 September 2004
Summary: Joint and several liability for partnership debt – effect where one
former partner settles with creditor – other does not –
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JUDGMENT
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COMRIE AJA
2
[1] This is an appeal from the Transvaal Provincial Division sitting
on appeal from the magistrate at Pi etersburg, as it was then known.
The appeal is with the leave of this court.
[2] After a lengthy trial the m agistrate ordered the appellant, an
attorney, to pay his erstwhile landlord, the respondent, the sum of
R36 791,10 in respect of rent which was in arrear and admittedly
unpaid. It was a partnership debt fo r which the appellant and his
former partner, Britz, were liable jointly and severally.
[3] In the appellant’s heads of argument two main contentions
were advanced. The first related to a costs order made at an early
stage of the proceedings, on 15 August 2000. In argument before us
Mr du Plessis, for the appella nt, abandoned this contention and
accordingly no more need be said about it.
[4] The second contention arises in this way. Before the trial
proper commenced, the respondent and Britz entered into a
settlement agreement which was ma de an order of t he court. It is
evident from clause 7 of the agreement that this was a settlement by
Britz of his liability in respect of a much larger claim, and that there
was no intention to release the appel lant from any joint and several
liability which he might have to th e respondent. This is so despite
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the words ‘in volle en finale vere ffening’ which appear elsewhere in
the agreement. Those words operated solely in favour of Britz.
[5] The settlement recorded that Britz undertook to pay R45 000
on account of capital, part said to have been paid al ready, part still
to be paid. On the strength of the settlement Mr du Plessis sought to
argue that the appellant was in law released in respect of the first
R45 000 of the partnership debt; and that since the amount found to
be owing was less than R45 00 0, the action should have been
dismissed. The authorities cited by counsel are not st rictly in point.
Here was not part payment prior to the institution of action which
had the effect of reducing the quantum of t he solidary debt.
Compare Dwyer v Goldseller 1906 TS 126. The respondent was
entitled to sue both partners, jointly and severally, for the full amount
of the disputed debt. Lee en ‘n ander v Maraisdrif (Edms) Bpk 1976
(2) SA 536 (A) at 543. The respondent was accordingly entitled to
have judgment entered against both p artners, jointly and severally –
the one paying, the other to be ab solved – for the amount admitted
or agreed (in the case of Britz) or the amount proven (in the case of
the appellant).
[6] The fact that neither order spec ified joint and several liability is
by the way. The particulars of cl aim expressly prayed for an order in
that form, and given the nature of the liability for partnership debts, it
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seems to me that joint and several liability was implicit in the order
granted against the appellant. T he amount of capital eventually
payable by the appellant will depend on how much Britz has actually
paid. Thereafter, it will be for t he former partners to exercise their
respective rights of recourse inter se.
[7] Clause 27.8 of the lease, on a proper interpretation, obliged
the appellant to pay attorney and client costs. That was a
contractual stipulation which the respondent was entitled to enforce.
SA Permanent Building Soci ety v Powell and others 1986 (1) SA
722 (A); Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA
1045 (SCA) from para 22. No gro unds were advanced on appeal for
us to exercise our residual judici al discretion against granting the
costs of appeal on such scale.
[8] The appeal is dismissed with costs on the attorney and client
scale.
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R G COMRIE
ACTING JUDGE OF APPEAL
CONCUR
HARMS JA
NAVSA JA
NUGENT JA
CONRADIE JA