Firstrand Bank Limited v Du Plessis and Others (29137/2016) [2018] ZAGPPHC 646 (19 March 2018)

Firstrand Bank Limited v Du Plessis and Others (29137/2016) [2018] ZAGPPHC 646 (19 March 2018)

The court found that the wording of the suretyships was clear and unambiguous, covering all indebtedness of Astradeals under the facility agreements, including debts incurred prior to 3 February 2010. There was no evidence of a common intention to limit liability or to rectify the suretyships. The deponent for the applicant had sufficient personal knowledge through her role and access to company records, and the respondents had admitted key facts. The National Credit Act did not apply to the facility agreements due to the asset value and nature of Astradeals. The respondents, as co-principal debtors, could not rely on payments not yet made by the liquidator to reduce their liability. The...

Citation
[2018] ZAGPPHC 646
Parties
Applicant: Firstrand Bank Limited; Respondent: Andre George Du Plessis; Respondent: Jorpe (Pty) Ltd; Respondent: Jorpe Turnkey Projects CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 March 2018
Case Number
29137/2016
Procedural Posture
Civil Application / Final Judgment After Opposed Motion
Outcome
Judgment granted against the first and third respondents jointly and severally for the amount claimed, with interest and costs.
Judges
Nowosenetz
Legal Topics
Suretyship Liability, Facility Agreement, Certificate of Indebtedness, National Credit Act Exclusion, Rectification of Contract, Personal Knowledge Affidavit
Banking and Finance Civil Procedure Suretyship Liability Facility Agreement Certificate of Indebtedness National Credit Act Exclusion Rectification of Contract Personal Knowledge Affidavit

Case Brief

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Parties

Firstrand Bank Limited

Applicant

Andre George Du Plessis

Respondent

Jorpe (Pty) Ltd

Respondent

Jorpe Turnkey Projects CC

Respondent

Procedural Posture

Civil Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the respondents' liability under the suretyships extends to all indebtedness of Astradeals, including debts incurred prior to 3 February 2010.
  2. 2 Whether the suretyships should be rectified to limit liability to debts incurred after 3 February 2010.
  3. 3 Whether the deponent to the applicant's affidavits had sufficient personal knowledge of the cause of action.

Ratio Decidendi

The court found that the wording of the suretyships was clear and unambiguous, covering all indebtedness of Astradeals under the facility agreements, including debts incurred prior to 3 February 2010. There was no evidence of a common intention to limit liability or to rectify the suretyships. The deponent for the applicant had sufficient personal knowledge through her role and access to company records, and the respondents had admitted key facts. The National Credit Act did not apply to the facility agreements due to the asset value and nature of Astradeals. The respondents, as co-principal debtors, could not rely on payments not yet made by the liquidator to reduce their liability. The...

Court Disposition

Judgment granted against the first and third respondents jointly and severally for the amount claimed, with interest and costs.

Orders

  • Payment in the amount of R2 869 157.46 by the first and third respondents jointly and severally, the one paying the other to be absolved.
  • Interest on the aforesaid amount at the rate of 9.75% per annum, calculated from 15 February 2018 to date of payment.