Business Partners Limited v Kleiner (2021/25244) [2023] ZAGPJHC 533 (9 May 2023)

Business Partners Limited v Kleiner (2021/25244) [2023] ZAGPJHC 533 (9 May 2023)

The court found that the last payment into the relevant account was made on 8 June 2019, which interrupted prescription in terms of the Prescription Act. This interruption applies both to the principal debtor and the surety. The debt is secured by a mortgage bond, invoking a 30-year prescription period. The defendant's submission that payments were not made by him was unsupported and did not constitute a bona fide defence to summary judgment. The court concluded that the plaintiff's claim had not prescribed and that summary judgment should be granted in favour of the plaintiff, with costs.

Citation
[2023] ZAGPJHC 533
Parties
Plaintiff: Business Partners Limited; Defendant: Fedrig Kleiner
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 May 2023
Case Number
2021/25244
Procedural Posture
Summary Judgment Application / Hearing and Judgment
Outcome
Summary judgment granted in favour of the plaintiff against the defendant, jointly and severally with any amounts recovered from the liquidation proceedings of K&K Italian Craft (Pty) Limited.
Judges
B.C. Wanless
Legal Topics
Summary Judgment, Suretyship, Prescription Act, Mortgage Bond, Liquidation, Certificate of Balance
Civil Procedure Commercial and Corporate Summary Judgment Suretyship Prescription Act Mortgage Bond Liquidation Certificate of Balance

Case Brief

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Parties

Business Partners Limited

Plaintiff

Fedrig Kleiner

Defendant

Procedural Posture

Summary Judgment Application / Hearing and Judgment

Legal Issues

  1. 1 Whether the defendant's liability as surety and co-principal debtor has prescribed.
  2. 2 Whether payments made into the account interrupted prescription under the Prescription Act.
  3. 3 Whether the defence raised by the defendant constitutes a bona fide defence to summary judgment.

Ratio Decidendi

The court found that the last payment into the relevant account was made on 8 June 2019, which interrupted prescription in terms of the Prescription Act. This interruption applies both to the principal debtor and the surety. The debt is secured by a mortgage bond, invoking a 30-year prescription period. The defendant's submission that payments were not made by him was unsupported and did not constitute a bona fide defence to summary judgment. The court concluded that the plaintiff's claim had not prescribed and that summary judgment should be granted in favour of the plaintiff, with costs.

Court Disposition

Summary judgment granted in favour of the plaintiff against the defendant, jointly and severally with any amounts recovered from the liquidation proceedings of K&K Italian Craft (Pty) Limited.

Orders

  • Summary judgment is granted in favour of the plaintiff against the defendant, jointly and severally together with any amounts recovered by the plaintiff from the liquidation proceedings of K&K Italian Craft (Pty) Limited.
  • Payment of the sum of R4,025,073.91 together with interest thereon at the rate of prime plus 4% (being 14.5% as at 25 December 2022) calculated daily and compounded monthly in arrears from 26 December 2022 to date of payment, both days inclusive.