Tradequick 74 CC v Gearwise Properties CC

• Jurisdiction: South Africa
• Judge: Ploos Van Amstel J
• Judgment Date: 14 November 2013
• Docket Number: 2614/2013
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 25 October 2013
• Citation: 2013 JDR 2557 (KZD)

Ploos Van Amstel J:

[1]

This is an application for judgment pursuant to a written settlement agreement and a suretyship. The settlement agreement records that the applicant had launched an application for the winding up of the first respondent, that the parties had agreed to settle the dispute between them and that the debt owing by the first respondent to the applicant in the agreed sum of R5 224 034.94 would be settled as recorded therein.

[2]

The agreement provides for the transfer to the applicant of six sectional title units, which would reduce the debt by an amount of R2 799 500, payment to the applicant of the sum of R500 000 from the proceeds of the sale of a property owned by the first respondent, and 19 monthly instalments of R100 000 each. Clause 8.1 provides that in the event of any one payment not being made on due date the balance then outstanding would become due and payable immediately.

[3]

The second respondent, who signed the settlement agreement on behalf of the first respondent, bound himself in terms of the agreement as surety and co-principal debtor in solidum with the first respondent for the due and proper fulfilment by it of all the terms and conditions of the agreement.

[4]

The sectional title units were transferred to the applicant and the sum of R500 000 was paid to it. The first four post-dated cheques where duly honoured but a cheque dated 10 November 2012 was dishonoured, as was the next one, dated 10 December 2012. Thereafter, during December 2012, the second respondent made a cash payment of R100 000 into the applicant's bank account, which left the first respondent in arrears by R100 000. In early January 2013 the second respondent contacted Mr Mallet, who deposed to the applicant's founding affidavit, and asked him not to deposit the cheque which was dated 10 January 2013. He said he would make a cash payment of R50 000, which he did.

2013 JDR 2557 p3

Ploos Van Amstel J

[5]

It is the applicant's case that in consequence of the failure to pay the November instalment when it was due the full outstanding balance became due and payable immediately. The balance claimed by the applicant is the sum of R1 379 034. It contends that mora interest should run from 10 November 2012, which was the date on which the first cheque was dishonoured.

[6]

The respondents raised a number of defences. The first was a challenge to Mr Mallet's authority to represent the applicant in the bringing of the application and to depose to the founding affidavit.

[7]

Mr Mallet said in the founding affidavit that he is the sole member of the applicant and duly authorised to depose to the affidavit on its behalf. This is disputed in the respondents' answering affidavit on the basis that the deponent had no knowledge of this. At the commencement of the hearing Mr Potgieter SC, for the respondents, made an application for a supplementary affidavit by the second respondent to be handed in. This was opposed by Ms Mills for the applicant, on the basis that the affidavit was tendered at a late stage and that the contents thereof were in any event irrelevant. In the supplementary affidavit the second respondent says that it came to his knowledge `during or about 23 October 2013' that Mr Mallet is not a member of the applicant close corporation. He says he caused a close corporation search to be done on 24 October 2013 (which was the day before the hearing) and established that the sole member of the applicant is the Mallet Family Trust, of which Mr Mallet and Yvonne Mallet are co-trustees.

[8]

There was no explanation as to why the close corporation search was only done on the day before the hearing. There is also no evidence in the affidavit to suggest that the applicant's attorneys did not have the required authority to launch the application. It may of course be said that it could not be expected of the respondents to put up such evidence as it is not within their knowledge. Uniform Rule 7(1) however provides the remedy. In terms of the rule the authority of anyone acting on behalf of a party may be disputed, whereafter such person may no longer act unless he satisfies the court that he is authorised so to act. In Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) Streicher JA said at 624:

'In my view, it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to...