Everite Building Products (Pty) Ltd v Cassim

• Jurisdiction: South Africa
• Judge: Ebrahim, J
• Judgment Date: 16 September 2006
• Citation: 2006 JDR 0638 (O)
• Docket Number: 121/2005
• Court: Orange Free State Provincial Division

Ebrahim J:

[1]

The plaintiff sues the defendant on the basis of a written Deed of Suretyship signed by the defendant on the 7th of May 2002 for the unpaid purchase price in the sum of R127 675,17 of goods sold and delivered by it to Kroon Build Centre (Pty) Ltd (hereinafter referred to as "Kroon" during September - October 2003. The plaintiff alleges that the defendant bound himself as surety in solidum

2006 JDR 0638 p2

Ebrahim J

and co-principal debtor with Kroon for the due payment of the latter's indebtedness to plaintiff.

[2]

The Deed of Suretyship was attached to the summons as annexure "B" and provides as follows:

"1.

I/We the undersigned

CASSIM CHOTHIA

I.D. No.: 551105 5025 08 5

do hereby bind myself/ourselves, as surety/ies and co- principal debtor/s jointly and severally and in solidium with:

for and behalf of:- KROON BUILD CENTRE (PTY) LTD (hereinafter referred to as "The Principal Debtor/s")

unto and in favour of the Creditor or any of its associated, subsdiary, divisions and agent companies or its successors in title or assigns for the due and punctual payment of all amounts due payable or owing by the Principal Debtor/s to the Credit or for any reason whatsoever."

2006 JDR 0638 p3

Ebrahim J

The defendant affixed his signature to the Deed of Suretyship after making the following endorsement in manuscript on the right-hand-side of the 2nd page-:

"This suretyship shall be valid for one year from dated and not exceed R 150 000,00 (one hundred & fifty thousand rands)."

He explained in evidence that the word "dated" refers to the date of signature of the document viz. 7 May 2002.

[3]

The defendant has admitted that the goods in question were delivered to and received by Kroon but has denied liability on two grounds. The first ground is a denial that Kroon purchased the goods from the plaintiff. Whilst admitting his signature on annexure "B", the defendant denies that annexure "B" is a suretyship undertaking given by him in favour of the plaintiff. The second ground of dispute is directly concerned with the endorsement made on annexure "B" and is pleaded as an alternative defence. Defendant contends that in the event of, it being

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Ebrahim J

found that plaintiff is indeed the creditor then ex facie the endorsement, the Deed of Suretyship was given for limited duration; it was valid for a period of only one year from date of signature, until 7th May 2003. The period of purchase relevant to this case, September - October 2003, falls outside the period covered by the suretyship and defendant accordingly argues that he cannot be held liable for the payment of goods purchased in that period.

[4]

In support of its case the plaintiff called as its first witness Mrs. Paola, it's National Credit Control Manager. She testified quite simply that she received the duly completed credit application form (annexure "C" to the summons) together with annexure "B" (the Deed of Suretyship) from the defendant who she understood was the Managing Director of Kroon, the principal debtor. Indeed it was common cause that the defendant had been in telephone communication with her assistant, one Elaine Green on the 7th of May 2002 and a credit application form had been faxed to the defendant for completion. According to this witness, she approved a credit facility of R65 000,00

2006 JDR 0638 p5

Ebrahim J

initially...