Business Partners Limited v Cebekhulu and Another (37984/2017) [2017] ZAGPPHC 967 (7 November 2017)

Business Partners Limited v Cebekhulu and Another (37984/2017) [2017] ZAGPPHC 967 (7 November 2017)

The first respondent's defence that the applicant must first excuss the principal debtor is not sustainable in law because he expressly renounced the benefit of excussionis in the suretyship agreement and bound himself as surety and co-principal debtor. This renunciation entitles the applicant to claim payment...

Source-derived case information.

Citation
[2017] ZAGPPHC 967
Parties
Applicant: Business Partners Limited; Respondent: Wiseman Philani Cebekhulu; Respondent: Well Earned Trading 14 CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 November 2017
Case Number
37984/2017
Procedural Posture
Summary Judgment Application / Opposed Application for Summary Judgment; Proceedings Against First Respondent Only
Outcome
Summary judgment granted against the first respondent; leave to defend granted to the second respondent.
Judges
E.M. Kubushi
Legal Topics
Summary Judgment, Suretyship, Benefit of Excussionis, Liquidated Claim, Joint and Several Liability
Civil Procedure Banking and Finance Summary Judgment Suretyship Benefit of Excussionis Liquidated Claim Joint and Several Liability

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Parties

Business Partners Limited

Applicant

Wiseman Philani Cebekhulu

Respondent

Well Earned Trading 14 CC

Respondent

Procedural Posture

Summary Judgment Application / Opposed Application for Summary Judgment; Proceedings Against First Respondent Only

Legal Issues

  1. 1 Whether the first respondent has disclosed a bona fide defence to the summary judgment application.
  2. 2 Whether the renunciation of the benefit of excussionis by the first respondent precludes reliance on that defence.
  3. 3 Whether the applicant is entitled to claim payment from the surety without first exhausting remedies against the principal debtor.

Ratio Decidendi

The first respondent's defence that the applicant must first excuss the principal debtor is not sustainable in law because he expressly renounced the benefit of excussionis in the suretyship agreement and bound himself as surety and co-principal debtor. This renunciation entitles the applicant to claim payment directly from the first respondent without first proceeding against the principal debtor. The defence advanced does not constitute a bona fide defence and would not succeed at trial. Accordingly, summary judgment is granted against the first respondent.

Court Disposition

Summary judgment granted against the first respondent; leave to defend granted to the second respondent.

Orders

  • Leave to defend is granted in favour of the second respondent; costs are costs in the cause.
  • Judgment is granted against the first respondent, jointly and severally, the one paying the other to be absolved.