Man Financial Services (SA) (Pty) Ltd v Kampala Bus Lines CC

• Jurisdiction: South Africa
• Judge: Ntshangase J
• Judgment Date: 29 August 2008
• Docket Number: 3525/2007
• Court: Durban and Coast Local Division
• Hearing Date: 21 May 2008
• Citation: 2008 JDR 1071 (D)

Ntshangase J:

[1]

This is an application for summary judgment against the three defendants jointly and severally. The plaintiff's claim is for payment of the sum of R268 837.32, together with interest thereon at the rate of 11.649% per annum calculated from 14 February 2007 to date of payment, and costs of suit. The second and third defendants are cited as sureties and co-principal debtors in solidum with the first defendant in terms of an unlimited Deed of Suretyship. The cause of action is founded on a credit agreement in terms whereof the plaintiff sold to the first defendant a bus described as "2003 MAN 24.350 HOCLN CHASSIS WITH A MARCOPOLO BODY".

[2]

The application for summary judgment is opposed by the first defendant. At the outset of proceedings Mr Haasbroek who appeared for the defendant indicated that no relief is sought against the second and third defendants; therefore they abide the decision of the court. Reference to the 'defendant'' shall hereafter be to the first defendant. Mr Haasbroek confirmed that the defendant's approach would be to raise technical objections against the

2008 JDR 1071 p2

Ntshangase J

plaintiff's summons and to proceed on those technical objections only and conceded that no defence is made out in the affidavit filed on behalf of the defendant. The defendant's heads of argument raised two points which bear reference to clauses 11.1.1 and 11.1.2 of the agreement, not canvassed in the opposing affidavit. They are dealt with now.

[3]

It was contended that the plaintiff's claim is flawed insofar as it seeks specific performance which it cannot do after it had cancelled the agreement. Mr Boulle, for the plaintiff argued that this misconceives plaintiff's claim and he referred also to defendant's heads of argument which purport to quote the plaintiff's particulars of claim in what incorrectly reads:

"…entitled to immediate payment of the outstanding balance owing … ."

What is pleaded reads:

"… entitled to claim immediate payment of the outstanding balance mentioned hereinafter …"

as what apparently accounts for the misunderstanding of the nature of the plaintiff's claim. Expounding on the correct meaning of the particulars of claim Mr Boulle submitted that the present position is that the contract is cancelled. What is indicated is what the defendant would have owed had it performed, but taking into account the value of the bus sold by the plaintiff what is claimed is what is owed.

[4]

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