Business Partners Ltd v Horner-Sikenqe and Others (1481/2024) [2024] ZAECMKHC 99 (20 August 2024)

Business Partners Ltd v Horner-Sikenqe and Others (1481/2024) [2024] ZAECMKHC 99 (20 August 2024)

The court found that the second respondent, having admitted the absence of a valid defence and not disputing his liability as surety, was not entitled to prevent judgment by requesting an indulgence to sell property. The court held that the applicant was entitled to judgment against the second respondent, jointly and severally with the other respondents, for the payment of the principal debt, interest, and costs. The request for additional time to arrange a private sale did not constitute a defence to the claim, and the court was satisfied that the requirements for default judgment were met.

Citation
[2024] ZAECMKHC 99
Parties
Applicant: Business Partners Ltd; Respondent: Ayanda Horner-Sikenqe; Respondent: Thembekile Sikenqe; Respondent: Siviwe Desi; Respondent: Guerilla Act Proprietary Limited
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
20 August 2024
Case Number
1481/2024
Procedural Posture
Default Judgment / Judgment Delivered After Unopposed Hearing; Second Respondent Appeared in Person to Oppose
Outcome
Judgment granted against the second respondent, jointly and severally with the other respondents, for payment of the principal sum, interest, and costs.
Judges
B.B. Brody
Legal Topics
Suretyship, Default Judgment, Joint and Several Liability, Enforcement of Debt
Civil Procedure Commercial and Corporate Suretyship Default Judgment Joint and Several Liability Enforcement of Debt

Case Brief

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Parties

Business Partners Ltd

Applicant

Ayanda Horner-Sikenqe

Respondent

Thembekile Sikenqe

Respondent

Siviwe Desi

Respondent

Guerilla Act Proprietary Limited

Respondent

Procedural Posture

Default Judgment / Judgment Delivered After Unopposed Hearing; Second Respondent Appeared in Person to Oppose

Legal Issues

  1. 1 Whether the second respondent has a valid defence to the applicant's claim for payment under the suretyship agreement.
  2. 2 Whether the court should grant judgment against the second respondent despite his request for an indulgence to sell property.
  3. 3 Whether the applicant is entitled to judgment against the second respondent jointly and severally with the other respondents.

Ratio Decidendi

The court found that the second respondent, having admitted the absence of a valid defence and not disputing his liability as surety, was not entitled to prevent judgment by requesting an indulgence to sell property. The court held that the applicant was entitled to judgment against the second respondent, jointly and severally with the other respondents, for the payment of the principal debt, interest, and costs. The request for additional time to arrange a private sale did not constitute a defence to the claim, and the court was satisfied that the requirements for default judgment were met.

Court Disposition

Judgment granted against the second respondent, jointly and severally with the other respondents, for payment of the principal sum, interest, and costs.

Orders

  • Judgment is granted against the second respondent, jointly and severally with the remaining respondents, the one paying the other to be absolved, for payment of the sum of R2 633 000.01.
  • Payment of interest on the amount of R2 633 000.01 calculated at the rate of prime interest as charged at the Standard Bank of South Africa Limited plus 1% per annum from 25 October 2023 to date of payment, both dates inclusive.