Business Partners Ltd v Horner-Sikenqe and Others (1481/2024) [2024] ZAECMKHC 99 (20 August 2024)
- Citation
- [2024] ZAECMKHC 99
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Eastern Cape High Court, Makhanda
- Panel
- B.B. Brody
- Case number
- 1481/2024
More details
- Court
- Eastern Cape High Court, Makhanda
- Panel
- B.B. Brody
- Case number
- 1481/2024
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
- The second respondent shall pay the costs of suit, on a scale as between attorney and client.
02
Material facts
Parties
Business Partners Ltd
Applicant Counsel: Adv. CouttsAyanda Horner-Sikenqe
RespondentThembekile Sikenqe
Respondent Counsel: In PersonSiviwe Desi
RespondentGuerilla Act Proprietary Limited
RespondentAmounts and remedies
- Principal Debt Awarded: ZAR 2,633,000.01
03
Procedural history
Posture
Default Judgment / Judgment Delivered After Unopposed Hearing; Second Respondent Appeared in Person to Oppose
04
Questions and positions
Legal issues
- 01
Whether the second respondent has a valid defence to the applicant's claim for payment under the suretyship agreement.
- 02
Whether the court should grant judgment against the second respondent despite his request for an indulgence to sell property.
- 03
Whether the applicant is entitled to judgment against the second respondent jointly and severally with the other respondents.
Party arguments
- Applicant
- The applicant argued that the second respondent is liable as surety for the principal debt, as set out in the particulars of claim. The suretyship was not challenged by the second respondent. The applicant sought judgment for the capital sum, interest, and costs, and opposed any delay in granting judgment.
- Respondent
- The second respondent, appearing in person, acknowledged the absence of a valid defence to the claim. He requested additional time to arrange a private sale of property registered in the name of the fourth respondent, arguing that such a sale would be more cost-effective and yield a better price than a sheriff's sale. He did not dispute his liability as surety.
05
Court’s reasoning
Legal principles
- 01
Common law; see also applicant's particulars of claim
A surety who does not dispute the validity of the suretyship agreement and admits liability cannot prevent judgment by merely requesting an indulgence.
- 02
Uniform Rules of Court, Rule 31(2)(a)
In the absence of a valid defence, the court is entitled to grant default judgment against a respondent.
06
Ratio, limits and disposition
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.
Obiter and limits
- A respondent's request for indulgence to arrange a private sale of property does not constitute a valid defence to a claim for payment under a suretyship agreement.
- The court noted that the second respondent was aware of his right to legal representation and chose to act in person, waiving that right.
Court disposition
Judgment granted against the second respondent, jointly and severally with the other respondents, for payment of the principal sum, interest, and costs.
- 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.
- The second respondent shall pay the costs of suit, on a scale as between attorney and client.
Source and reliance status
Eastern Cape High Court, Makhanda
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Judgment reading view
Judgment text
The complete available source text.
Eastern Cape High Court, Makhanda
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION – MAKHANDA)
Reportable/Not Reportable
Case no.: 1481/2024
Matter heard on: 13 August 2024
Judgment delivered on: 20 August 2024
In the matter between:
BUSINESS
PARTNERS LTD (REGISTRATION NUMBER: 1981/000918/06) Applicant and
AYANDA HORNER-SIKENQE (IDENTITY NUMBER: 8[…]) First Respondent
THEMBEKILE
SIKENQE (IDENTITY NUMBER: 7[…]) Second Respondent
SIVIWE
DESI (IDENTITY NUMBER: 8[…]) Third Respondent
GUERILLA
ACT PROPRIETARY LIMITED (REGISTRATION NO.: 2017/217097/07) Fourth Respondent
JUDGMENT
BRODY AJ
1. This is a matter in which the applicant sought default judgment on an unopposed basis on the 13th of August 2024.
2. The applicant previously obtained judgment against first and third respondents jointly and severally, the one paying, the other to be absolved on the 14th of May 2024 for the payment of the capital sum, interest and costs.
3. There was appearance on behalf of the second respondent and I accordingly granted a judgment, by default against the fourth respondent, with costs, and as set out in the draft order.
4. The second respondent acted in person to oppose judgment being granted against him, and he indicated that he was aware of his right to appoint a legal representative, and wavered his right to do so.
5. The second respondent then argued the matter personally.
6. The second respondent indicated that he was aware of the judgment that had been handed down previously against the fourth respondent.
7. The second respondent indicated that he had no valid defence in the action against him by the applicant, however, wanted further time in which to sell a property which was registered in the name of the fourth respondent. His argument was that an arranged sale would be more cost effective and would obtain a better price than a sale by the sheriff in terms of the rules of court.
8. The second respondent was a surety to the principal debt, and as set out in the applicants’ particulars of claim. This suretyship was not challenged by the second respondent, in argument.
9. There can be no merit in the second respondent’s argument that he is entitled to prevent judgment from being granted against him in circumstances where he was merely requesting an indulgence to be permitted to sell a property belonging to the fourth respondent, which I was advised, was in any event in liquidated.
10. In the absence of a valid defence I am inclined to grant judgment against the second respondent, jointly and severally, with the other respondents, the one paying the other to be absolved.
11. In the result, I make the following order.
1. 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.
2. 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 25th October 2023 to date of payment, both dates inclusive.
3. The second respondent should pay the costs of suit, on a scale as between attorney and client.
B.B. BRODY
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES: Counsel for the Applicant : Adv. Coutts Instructed by : Edward Nathan Sonnenbergs Inc. c/o De Jager & Lordan Inc. 2 Allen Street
MAKHANDA (REF.: ST/cb/B771 Second Respondent : In Person
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