Sasfin (Pty) Ltd v Beukes; Suid-Afrikaanse Vervoerdienste v Sasfin (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Van Niekerk J
• Judgment Date: 05 December 1986
• Court: Witwatersrand Local Division

Van Niekerk J:

Two applications, related by virtue of a deed of cession executed by a medical specialist, Dr H J S Beukes, the respondent in the first application, in favour of Sasfin (Pty) Ltd, a finance company and the applicant in the first application, and also the respondent in the second application, which is brought by Suid-Afrikaanse Vervoerdienste ('Transmed'), have been placed before me for consideration. For the sake E of convenience I will refer to the matters as the first and second applications and to the names of the respective parties.

In the first application the applicant, Sasfin, claims an order from the respondent, Dr Beukes, as follows:

'(1) (i)

declaring that the cession executed by the respondent in favour of the applicant on 13 F February 1985 is of full force and effect;

(ii)

Interdicting and restraining the respondent from collecting, either from his patients and from any medical aid societies, or from any person, any of the debts ceded by him to the applicant;

(iii)

G directing that the respondent furnish an account to the applicant of all amounts collected by him since 13 November 1985 and pay to the applicant all the amounts so collected;

(iv)

directing that the respondent is obliged to give the applicant access to all his books, records and documents in terms of the deed of cession for the H purpose of allowing the applicant to exercise its rights in terms of the deed of cession.

(2)

Alternatively to 1(i) - (iv) above, granting the applicant an interim interdict interdicting and restraining the respondent from collecting, either from his patients and from any medical aid societies, or from any person, any of the debts ceded by him I to the applicant, pending proceedings to be instituted against the respondent for the relief set out in (1)(i) - (iv), such proceedings to be instituted within 30 days from the date of this order, and

(3)

Directing that the respondent pay the costs of this application.'

Sasfin bases the relief which it seeks on a discounting agreement it J concluded with Beukes on 13 February 1985, as well as a deed of cession

Van Niekerk J

A executed by Beukes in favour of Sasfin, Sassoons Textiles (Africa) (Pty) Ltd and Simpex (Pty) Ltd. Under the discounting agreement, Beukes would, from time to time, offer for sale to Sasfin those of his book debts which he wished to sell and which, if purchased, would then be governed by the terms and conditions specified therein.

B The discounting agreement and the cession were executed on Beukes' behalf by Computerised Management Applications (Pty) Ltd (CMA) and this is conceded. The cession was in securitatem debiti for all the debts and obligations of Dr Beukes to Sasfin and the other companies from whatsoever cause arising.

Sasfin avers that Beukes has breached warranties furnished in terms of C clauses 5 and 13 of the discounting agreement and that it cancelled that agreement. At date of cancellation, it contends, Beukes was indebted to it in the sum of R108 575,80. Because of the cancellation, and Beukes' indebtedness, Sasfin avers that it is entitled to enforce its rights in terms of the cession.

D These averments are strenuously disputed and Beukes maintains that he has a counterclaim in a lesser amount. On behalf of Beukes the following defences were raised to Sasfin's claim:

(i)

The non-joinder of the various medical aid schemes from whom Sasfin claims payment under and in terms of the cession.

(ii)

E That Sasfin embarked upon application proceedings knowing that a dispute of fact would materialise and, more particularly, that both the discounting agreement as well as the cession had been terminated in August 1985 and that Sasfin was well aware of this as a consequence of correspondence between Sasfin and Beukes' attorneys, copies of which are annexed to the papers.

(iii)

F The cession is against public policy and the public interest.

(iv)

The relationship between doctor and patient flows from a delectus personae and the rights attaching to it could not be ceded without the debtor/patient's consent, which had not been obtained.

(v)

The cession is unenforceable in the absence of the consent of the various debtors, namely the medical aid schemes.

(vi)

G That s 32 of the Medical Schemes Act 72 of 1967 obliges the various medical aid schemes to make payment directly to the 'supplier of services' (the doctors).

(vii)

At the time that the discounting agreement and the cession were concluded Sasfin made material misrepresentations with the result that Beukes became entitled to cancel the agreements, alternatively, the misrepresentations had the effect of H negativing Beukes' consensus in and to the discounting agreement and cession.

(viii)

Sasfin and/or CMA failed, neglected and/or refused to fulfil their obligations under and in terms of the discounting agreement constituting a repudiation of the discounting I agreement, which repudiation Beukes has accepted.

(ix)

Sasfin threatened Beukes that unless he concluded a new agreement with CMA Sasfin would withhold payment in terms of the discounting agreement, which threat the respondent regarded as a repudiation of the discounting agreement, entitling him to J cancel the same.

Van Niekerk J

A The relevant portions of the deed of cession provided that Beukes pledges, cedes, assigns, transfers and makes over to Sasfin and the other two companies (all referred to as the creditors) jointly and severally:

'All claims, rights of actions and receivables which are now, and which may at any time hereafter, become due to me/us by all persons B (hereinafter referred to as my/our debtors) without exception from any cause of indebtedness whatsoever (the claims) as continuing covering security for the due and proper payment, on demand, of all sums of money and the due and proper performance of all obligations which I/we may have in the past owed or incurred or may, at the present or in the future, owe or incur to all or any of the creditors from whatsoever cause and howsoever and whenever arising and whether out of contract, C delict, unjust enrichment, statutory enactment, common law or howsoever otherwise arising and without in any way limiting or affecting the generality of the aforegoing... and/or whether such indebtedness arises from money already and/or hereafter to be advanced... and/or from damages for breach of contract by me/us and/or from damages or compensation which may arise out of the action and/or conduct and/or inaction of and/or cancellation, termination or determination by me/us and/or the creditors or any of them and/or any other person or any D contract on any grounds whatsoever and/or from guarantees or indemnities given or to be given by me/us to you on behalf of any persons....'

The cession also provides that the cessionary, Beukes, acknowledges that:

'3.1

E It shall always be in the creditors' discretion to determine the extent, nature and duration of the facilities, if any, to be allowed to me/us.

3.2

Should I/we at any time be in default in respect of, or commit any breach of, any of my/our obligations to any of the creditors then my/our entire indebtedness to all the creditors, from whatsoever cause and however and whenever arising, shall immediately become due and payable to the creditors.'

F In addition, clause 3.4 provides that:

'The creditors shall be entitled at any time or times hereafter without notice to me/us and without first obtaining any order of Court to

3.4.1

give notice of this cession to all or any of my/our debtors and to take such steps as the creditors may deem fit to recover all or any of the claims hereby ceded, and/or

3.4.2

G cause all or any of the claims hereby ceded to be sold by public auction or private treaty or in any other manner for such price and on such terms and to such purchasers as the creditors in their sole and absolute discretion may deem fit.'

Clause 3.4.4 is followed by a general clause in terms of which the creditors shall apply the net proceeds of:

H 'Any such recovery or sale in terms of 3.4.1 or 3.4.2 or the purchase price payable by the creditors in terms of 3.4.3 as the case may be after deducting therefrom all costs and expenses incurred, or about the realisation of the claims and exercised by the creditors of its/their rights including, where applicable, the commission referred to in 7 in reduction or discharge as the case may be of my/our indebtedness to the creditors without prejudice to the creditors' rights to recover from me/us any balance which may remain owing to the creditors after the I exercise of such rights.'

Then follows:

'All of the aforegoing is without prejudice to all other rights that the creditors may have at law and all other securities which may be held by the creditors and, provided further, however, that should the J creditors at any time collect/recover in

Van Niekerk J

A aggregate an amount which, after taking into account all the costs and expenses incurred by the creditors in connection with the realisation and/or recovery or attempted recovery of the claims hereby ceded and the exercise of the creditors of their rights, exceeds the full amount of my/our indebtedness for the time being whether actual or contingent or prospective, the creditors shall be entitled but not obliged to refund such excess to me/us without affecting the force and continuity of the B cession as security for any indebtedness subsequently arising in favour of the creditors.'

Clause 3.5 provides for the right by the creditors to inspect the cessionary's books at any time and clause 3.6.4 provides for the right by the creditors to obtain any additional or other securities from the C cessionary at any time they choose to do so. In terms of clause 3.7:

'No act or omission shall in any way limit or...