Engen Petroleum Ltd v Nirghin (21822/2022) [2023] ZAGPJHC 1150 (4 October 2023)

Engen Petroleum Ltd v Nirghin (21822/2022) [2023] ZAGPJHC 1150 (4 October 2023)

The court found that the respondent's only defence was the alleged prescription of the suretyship agreement, which was not supported by the facts or law. The indebtedness was undisputed and acknowledged by the main debtor, who had been liquidated. The respondent's conduct, including the late filing of an answering affidavit and an unsubstantiated application for postponement, was deemed to be a delay tactic. No proper evidence or application was presented to support the respondent's contentions. Accordingly, the court granted the money judgment in favour of the applicant and awarded costs on an attorney and client scale.

Citation
[2023] ZAGPJHC 1150
Parties
Plaintiff: Engen Petroleum Ltd; Defendant: Dhewenthra Nirghin
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 October 2023
Case Number
21822/2022
Procedural Posture
Civil Procedure / Final Judgment
Outcome
Judgment granted in favour of the applicant; costs awarded on attorney and client scale.
Judges
Yacoob
Legal Topics
Suretyship Agreement, Prescription, Money Judgment, Attorney and Client Costs
Commercial and Corporate Suretyship Agreement Prescription Money Judgment Attorney and Client Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Engen Petroleum Ltd

Plaintiff

Dhewenthra Nirghin

Defendant

Procedural Posture

Civil Procedure / Final Judgment

Legal Issues

  1. 1 Whether the suretyship agreement has prescribed.
  2. 2 Whether the defendant has any substantive defence to the claim for payment under the suretyship agreement.
  3. 3 Whether costs should be awarded on an attorney and client scale.

Ratio Decidendi

The court found that the respondent's only defence was the alleged prescription of the suretyship agreement, which was not supported by the facts or law. The indebtedness was undisputed and acknowledged by the main debtor, who had been liquidated. The respondent's conduct, including the late filing of an answering affidavit and an unsubstantiated application for postponement, was deemed to be a delay tactic. No proper evidence or application was presented to support the respondent's contentions. Accordingly, the court granted the money judgment in favour of the applicant and awarded costs on an attorney and client scale.

Court Disposition

Judgment granted in favour of the applicant; costs awarded on attorney and client scale.

Orders

  • The defendant is ordered to pay the amount claimed in terms of the draft order.
  • The defendant is ordered to pay costs on the attorney and client scale.