E a Gani (Pty) Ltd v Francis

• Jurisdiction: South Africa
• Judge: Goldstone J and Kirk-Cohen J
• Judgment Date: 09 March 1983
• Court: Transvaal Provincial Division
• Hearing Date: 25 February 1983
• Citation: 1984 (1) SA 462 (T)

Goldstone et Kirk-Cohen JJ:

In the court a quo the appellant, as plaintiff, sued the respondent for payment of the sum of R2 269,39. We refer to the parties as the plaintiff and the defendant respectively. The plaintiff's causa is set out D succinctly in the annexure to the summons, which reads as follows:

"1.

The plaintiff is E A Gani (Pty) Ltd, a company duly incorporated with limited liability in terms of the company laws of the Republic of South Africa and carrying on business under the style of Gani's Motors as suppliers of motor vehicles to the public and E having its principal place of business at 409 Kerk Street, Potchefstroom.

2.

The defendant is J G Francis, an adult male whose full and further names and occupation are to the plaintiff unknown of 6 Impala Street, Pietersburg.

3.

On 29 August 1979 the plaintiff obtained judgment F against Henry John Francis in the sum of R1 445,80 plus interest thereon at the rate of 10 per cent per annum from date of default to date of payment, together with costs which, being duly taxed, amount to the sum of R823,59. The said sums, totalling R2 G 269,39, have not been paid by the said H J Francis.

4.

On 16 November 1973, the defendant bound himself to the plaintiff as surety, in terms of a written deed of suretyship, as surety and co-principal debtor for all amounts owing by the said Henry John Francis to the plaintiff.

5.

Notwithstanding demand, defendant fails, refuses, or neglects to pay the said sums totalling R2 269,39.. H ."

In a request for further particulars the defendant requested the plaintiff to furnish details of the cause of action upon which the plaintiff obtained judgment against the principal debtor, one H J Francis. The plaintiff furnished the following details:

On 16 November 1973 the plaintiff and H J Francis concluded a written contract of a motor car which lease was for a period of 36 months at a monthly rental of R66,55. H J Francis failed to pay the

Goldstone et Kirk-Cohen JJ

monthly rentals in terms of the deed of lease to the plaintiff and the sum of R2 269,39 is the total of the arrear instalments and interest due in terms of the plaintiff's said contract of lease with H J Francis as well as the plaintiff's taxed cost of A suit which H J Francis was ordered to pay to the plaintiff. Such taxed costs amounted to the sum of R823,59.

The following facts are common cause:

(i)

The lease between the plaintiff and H J Francis expired on 15 November 1976.

(ii)

The plaintiff sued H J Francis as set out above and B obtained judgment against him on 29 August 1979.

(iii)

The surety and co-principal debtorship upon which the plaintiff based his action against the defendant was executed by the defendant on 16 November 1973, the same day on which H J Francis concluded the contract of lease with the plaintiff.

(iv)

The plaintiff took no action whatsoever against the C defendant until summons in the matter now under appeal was served on the defendant on 30 April 1980.

(v)

The defendant in due course filed pleas, one of which was a plea of prescription; that plea reads as follows:

"Pleit van verjaring

2.1

D Die beweerde skuld (wat ontken word) het reeds voor of op 16 November 1976 opeisbaar geword met betrekking tot verweerder.

2.2

Die beweerde skuld (wat ontken word) is dus ingevolge die bepalings van arts 10 en 11 E (d) gelees met art 12 (1) van die Verjaringswet 68 van 1969 deur verjaring uitgewis voor betekening van dagvaarding aan verweerder.

2.3

Verweerder smeek derhalwe dat eiser se eis teen hom van die hand gewys word met koste."

"Die beweerde skuld" is a reference to the causa upon which the plaintiff relies. This, without doubt, is the judgment debt which includes the taxed costs referred to above.

In the court a quo the parties agreed to a separate hearing of the plea of prescription. No evidence was led, but the parties, by agreement, handed in the file of pleadings in the action between the plaintiff and H J Francis. After argument the G magistrate upheld the plea of...