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[2012] ZAWCHC 320
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Baur v Von Bodenhausen (11191/2012) [2012] ZAWCHC 320 (21 September 2012)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT/CAPE TOWN)
Case
Number: 11191/2012
DATE:
21 SEPTEMBER 2016
In
the matter between:
Hans-George
Baur
.....................................................................................................................
Applicant
And
Philip
Frhr. Von
Bodenhausen
..............................................................................................
Respondent
JUDGMENT
DELIVERED
ON FRIDAY 21 SEPTEMBER 2012
Baartman,J
[1]
This is an application for summary judgment. It was common cause that
on 30 June 2011, the parties had entered into a loan agreement
pursuant whereto the applicant, as lender, had on 15 and 19 November
2010 .and on 2 December 2010 paid into the account of Euro
Centre
Investments CC, at the time trading as Cape Invest (Cape Invest),
amounts totalling R467 500. The respondent had nominated
that account
for payment in the loan agreement.
[2]
The applicant alleges that R452 500 was due. The respondent; admits
the contract and the outstanding amount but alleges that
the amount
was due by Cape Investment rather than by him. I deal below with the
largely common cause background and the circumstances
that gave rise
to the respondent’s denial of liability,
BACKGROUND
[3]
On 10 November 2010, the applicant and: the respondent entered into a
written agreement from which the following appear:
“
LOAN
AGREEMENT
The
following loan agreement is entered into Between
[H.........]
[B.......] [E.......]
[S.........]
Resident
(lender)
And
Philipp
Baron van Bodenhausen ID[6……]
[H.....]
[7.......][S............]
-hereinafter
referred to as the borrower- For an amount of ZAR 500 000, —
On
the following conditions:
1.
Basis of Contract and Loan
The
loan serves as a bridging loan until 30 06 2011. The loan is a
private loan.
On
this basis, the lender grants the borrower a loan of ZAR 500.000.00.
The value date of the value is the lender’s transfer
date,
which will be transmitted to the recipient as a copy.
Account
holder:
Cape
invest
First
National Bank
Branch
Code: [2………]
Branch
Code: [6……]
Note:
Private investment”
[4]
The respondent alleged that the parties intended for Cape Invest to
be the borrower not him. Conversely,, the applicant alleged
that the
parties’ intention was that which is apparent from the
contract. The process of interpretation of a contract starts
with
assuming that the parties to the contract had expressed their
intention through the particular words employed in drafting
the
agreement.
(a)
It follows that where the words used are clear and unambiguous, a
court need look no further for the intention of the parties.
(See
Scottish Union & National Insurance Co Ltd v Native Recruiting
Corporation Ltd
1934 AD 458
and Coertzen v Gerard No and Another
1997
(2) SA 836
(O)).
(b)
In addition, the words employed in the contract must also be given
their ordinary, grammatical meaning. (See Aegis Assuransie
Maatskappy
Bpk v Van der Merwe
2000 1 All SA 420
(T) and Jonnes v Anglo-African
Shipping Co Ltd 1972 (2)
[5]
I have applied the above process to the contract at issue in this
matter and am of the view that there is nothing ambiguous
in the
language used in the contract. The terms are clear. It follows, as is
apparent from the contract, that the respondent is
the borrower and
therefore the person indebted to the applicant.
[6]
The intention of the parties to the contract also appears from the
“Promissory Note” signed; simultaneously with
the loan,
agreement. The parties to the “Promissory Note” are the
same as. Those to the loan agreement and the respondent
is identified
as the borrower who:
“
..
.Owes to the lender an amount of 500. 000, --ZAR...
The
claim is based on the following reason:
X
private loan”
[7]
The respondent as borrower further, per the “Promissory
Note”, undertook to repay the amount borrowed “
...by not
later than 30 06 2011” In my view, the plain grammatical
meaning of these 2 documents excludes the interpretation
the
respondent has sought to place on the agreement. The respondent is
presumed to have been familiar with and to have assented
to the terms
of the contract he entered into. (See Bhikhagee v Southern Aviation
(Pty) Ltd
1949 (4) SA 105
(E)) Furthermore, the respondent does not
allege that the applicant had misled him in any way. It follows that
this defence is
not bona fide.
[8]
[The respondent nominated the bank account of Cape Invest as the
account into which the amount borrowed must be paid. The applicant
complied. It follows that the respondent’s reliance on the
beheficium non numeratae pecuniae is not bona fide.
[9]
The respondent has indicated that Gape Invest is in liquidation and
that he now seeks an opportunity to join the liquidator
appointed in
the liquidation to these proceedings. The respondent intends to rely
on his right of “beneficium de duobus vel
pfuribus reis
debendi”. However, Cape Invest was not a party to the agreement
and no rights or obligations accrued to it.
This defence is not open
to the respondent because Cape Invest is not a co-debtor.
CONCLUSION
[10]
I, for the reasons stated above, make the following order:
(a)
Summary judgment is granted in terms of prayers a, b, c, d, e
and f of the Notice of Motion.
Baartman,
J