Bid Financial Services v Close Trade 42 CC t/a Design Workshop

• Jurisdiction: South Africa
• Judge: Masipa J
• Judgment Date: 12 September 2008
• Docket Number: 2002/839
• Court: Witwatersrand Local Division
• Hearing Date: 08 August 2008
• Citation: 2008 JDR 1219 (W)

Masipa J:

INTRODUCTION

[1] The first and second defendants, by way of a special plea, pleaded that the plaintiff's claim had become prescribed.

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[2] The plaintiff sought a dismissal of the first and second defendants' plea of prescription with costs on the attorney and client scale.

HISTORICAL BACKGROUND

[3] During or about January 2002, the plaintiff (purportedly as cessionary), served a summons on the first defendant (as principal debtor) and the second to fourth defendants (as sureties) for recovery of arrear rentals (Claim A) and pre-estimated liquidated damages (Claim B). This was pursuant to two rental agreements (Master Rental Agreements) for certain office equipment which the first defendant hired from a company known as ABS Finance. The two rental agreements were dated 14 December 1999 and 16 March 2000 respectively.

[4] The matter was enrolled for trial on 19 December 2005.

[5] At the trial hearing, the first and second defendants gave notice that they were taking exception to the Plaintiff's Particulars of Claim.

[6] The exception was aimed at paragraph 6 of the Plaintiff's Particulars of Claim which read thus:

"On May 2000 and at Parktown and by means of a written Cession Agreement, ENSEMBLE TRADING 55 (PTY) LTD trading as ABFIN and/or ABS FINANCE (hereinafter referred to as ABS Finance) ceded its right, title and interest in and to certain agreements including the agreement entered into between itself and the 1st Defendant more fully referred to in paragraph 7 and 8 plus 18 and 19 below to the Plaintiff (A

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Masipa J

copy of a Cession Agreement is annexed hereto marked Annexure "B" the terms and conditions of which should read as specifically incorporated herein.)"

[7] Paragraphs 7 and 8 refer to Claim A wherein the plaintiff claims an amount of R220 770,32. Paragraphs 18 and 19 refer to Claim B. In this claim the plaintiff sues for payment for an amount of R55 681,90.

[8] It is common cause the Annexure "B" is not a cession agreement. It is what is referred to as a Main Cession Agreement (MCA) entered into by the plaintiff as cessionary and an entity described in the MCA as Ensemble Trading 55 (Pty) Ltd trading as Abfin and/or ABS Finance. This agreement was entered into on May 2000.

[9] The court, per Bruinders AJ, upheld the exception, struck out paragraph 6, and granted the plaintiff leave to amend in order to comply with the court's judgment within 10 days from date of judgment.

[10] After two failed attempts to amend its Particulars of Claim plaintiff finally filed a notice of amendment on or about February 2007. There was no objection to the amendment.

[11] The amended paragraph 6 reads as follows:

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"6.1

CESSION

On or about 30 May 2000 and at Parktown, Plaintiff, duly represented, concluded a written agreement styled 'Main Cession Agreement' ('the MCA') with Ensemble Trading 55 (Pty) Ltd t/a ABFIN and/or ABS Finance ('ABS Finance'), duly represented by one Dave Absil ('Absil'), embodying the terms and conditions upon which cession transactions may be conducted between the Plaintiff and ABS Finance, a copy of which is annexed hereto marked 'B', the terms and conditions of which are incorporated herein as if specifically set forth.

6.2

Even though the MCA was only formally signed by the Plaintiff on 30 May 2000 and by ABS Finance on 25 January 2000, the parties thereto considered themselves bound by the terms thereof even prior thereto, in that both Plaintiff and ABS Finance concluded cession transactions in accordance with its terms and conditions being the standard terms and conditions upon which the Plaintiff transact cessions with cedent clients in general.

6.3

In the alternative and in the event of the above Honourable Court finding, for whatever reason, that the cessions pleaded in the following paragraphs could not have taken place pursuant to the MCA, Plaintiff alleges that cession of ABS Finance's rights in terms of the said rental agreements in any event took place by means of an oral cession on the respective dates, the Plaintiff and ABS Finance represented as alleged, the rental contracts having been offered and delivered by ABS Finance, which offers were in each of the two instances of cession accepted by the Plaintiff and communicated to ABS Finance by payment for such rental contracts.

6.4

On or about 12 January 2000 and at Parktown, ABS Finance, duly represented by Absil, in terms of the MCA, alternatively orally offered to cede the rental contracts more fully referred to in paragraphs 7 and 8, to the Plaintiff.

6.5

The Plaintiff was at all material times duly represented by Lisa Allsop ('Allsop') and ABS Finance by Absil.

6.6

ABS Finance complied with the formalities of...