Avrum Finance (Pty) Ltd v Saaiman and Others (15035/2019) [2021] ZAWCHC 219 (29 October 2021)

Avrum Finance (Pty) Ltd v Saaiman and Others (15035/2019) [2021] ZAWCHC 219 (29 October 2021)

The court found that the respondents were liable under the suretyship for the sum of R402,180.33, which was loaned and advanced by the applicant to the principal debtor. The reference to the 'Seasonal Advance Loan Agreement' instead of the 'Production Loan Agreement' did not render the suretyship unenforceable, as it was common cause that only one loan agreement existed and the respondents were aware of the principal obligation. The certificate of balance provided prima facie proof of the amount owed, but the court was not satisfied that the higher amount of R570,373.76 was due, as the evidence did not support this claim. Rectification of the suretyship document was deemed unnecessary....

Citation
[2021] ZAWCHC 219
Parties
Applicant: Avrum Finance (Pty) Ltd; Respondent: André Daniël Saaiman; Respondent: Corné Adriaan Saaiman; Respondent: André Daniël Saaiman N.O.; Respondent: Corné Adriaan Saaiman N.O.; Respondent: Frederik Thomas Saaiman N.O.; Respondent: Bespoke Fiduciary Service (Pty) Ltd N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 October 2021
Case Number
15035/2019
Procedural Posture
Civil Application / Opposed Motion for Money Judgment Based on Suretyship
Outcome
Application partially granted; respondents ordered to pay R402,180.33 plus interest and costs on party and party scale.
Judges
E D Wille
Legal Topics
Suretyship Liability, Rectification of Contract, Certificate of Balance, Business Rescue, Mora Interest
Civil Procedure Commercial and Corporate Suretyship Liability Rectification of Contract Certificate of Balance Business Rescue Mora Interest

Case Brief

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Parties

Avrum Finance (Pty) Ltd

Applicant

André Daniël Saaiman

Respondent

Corné Adriaan Saaiman

Respondent

André Daniël Saaiman N.O.

Respondent

Corné Adriaan Saaiman N.O.

Respondent

Frederik Thomas Saaiman N.O.

Respondent

Bespoke Fiduciary Service (Pty) Ltd N.O.

Respondent

Procedural Posture

Civil Application / Opposed Motion for Money Judgment Based on Suretyship

Legal Issues

  1. 1 Whether the respondents are liable under the suretyship for the amount claimed by the applicant.
  2. 2 Whether the reference to the 'Seasonal Advance Loan Agreement' instead of the 'Production Loan Agreement' renders the suretyship unenforceable.
  3. 3 Whether the certificate of balance provides prima facie proof of the amount owed.

Ratio Decidendi

The court found that the respondents were liable under the suretyship for the sum of R402,180.33, which was loaned and advanced by the applicant to the principal debtor. The reference to the 'Seasonal Advance Loan Agreement' instead of the 'Production Loan Agreement' did not render the suretyship unenforceable, as it was common cause that only one loan agreement existed and the respondents were aware of the principal obligation. The certificate of balance provided prima facie proof of the amount owed, but the court was not satisfied that the higher amount of R570,373.76 was due, as the evidence did not support this claim. Rectification of the suretyship document was deemed unnecessary....

Court Disposition

Application partially granted; respondents ordered to pay R402,180.33 plus interest and costs on party and party scale.

Orders

  • The first and second respondents, jointly and severally, are ordered to pay the applicant the sum of R402,180.33 within ten days of the order.
  • The first and second respondents, jointly and severally, shall be liable for mora interest at the legal rate on the sum of R402,180.33.