High Point Trading 733 BK t/a High Point Bridging v De Villiers and Others (671/2009) [2009] ZAFSHC 127 (10 December 2009)
The court held that the respondents' uncontested averment that they were an incorporated company and not a partnership, and that the individuals were directors and not partners, was decisive. As the applicant failed to respond to this in its replying affidavit, the respondents' version prevailed in terms of the...
Source-derived case information.
- Citation
- [2009] ZAFSHC 127
- Parties
- Applicant: High Point Trading 733 BK t/a High Point Bridging; Respondent: Steenkamp De Villiers and Coetzee; Respondent: Izak Jacob Steenkamp; Respondent: Johann Marks De Villiers; Respondent: Rehan Coetzee
- Court
- Free State High Court, Bloemfontein
- Jurisdiction
- South Africa
- Case Number
- 671/2009
- Procedural Posture
- Urgent Application / Application to Compel Payment; Opposed Motion
- Outcome
- Application dismissed with costs due to incorrect citation of parties.
- Judges
- A. Simelane
- Legal Topics
- Citation of Parties, Bridging Finance Agreement, Undertaking to Pay, Motion Proceedings, Plascon Evans Rule
Source-derived case record
Summary, issues, holding and outcome
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Parties
High Point Trading 733 BK t/a High Point Bridging
Applicant
Steenkamp De Villiers and Coetzee
Respondent
Izak Jacob Steenkamp
Respondent
Johann Marks De Villiers
Respondent
Rehan Coetzee
Respondent
Procedural Posture
Urgent Application / Application to Compel Payment; Opposed Motion
Legal Issues
- 1 Whether the respondents were correctly cited as a partnership and partners rather than as an incorporated company and directors.
- 2 Whether the undertaking to pay in annexure V5 created a binding obligation on the respondents to pay the applicant from the proceeds of the sale.
- 3 Whether the National Credit Act applies to the transaction.
Ratio Decidendi
The court held that the respondents' uncontested averment that they were an incorporated company and not a partnership, and that the individuals were directors and not partners, was decisive. As the applicant failed to respond to this in its replying affidavit, the respondents' version prevailed in terms of the Plascon-Evans rule. Consequently, the citation of the wrong parties was fatal to the application, making it unnecessary to consider the merits of the claim or the applicability of the National Credit Act. The application was dismissed with costs.
Court Disposition
Application dismissed with costs due to incorrect citation of parties.
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
40 paragraphs
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. : 671/2009
In the matter between:-
HIGH POINT TRADING 733 BK Applicant
t/a HIGH POINT BRIDGING
and
STEENKAMP DE VILLIERS AND COERTZE 1st Respondent
IZAK JACOB STEENKAMP 2nd Respondent
JOHANN MARKS DE VILLIERS 3rd Respondent
REHAN COETZEE 4th Respondent
_____________________________________________________
HEARD ON: 27 AUGUST 2009
DELIVERED ON: 10 DECEMBER 2009
JUDGMENT BY: SIMELANE, AJ
[1] This is an application by the applicant to compel the respondents to pay R49 955,00 (forty nine thousand nine hundred and fifty five rand) together with interest at the rate of 15,5% per year from 1 August 2008, the respondents to pay that amount jointly and severally, the one paying the others to be absolved and that the respondents pay the costs of this application on a scale as between attorney and client.
[2] There are four aspects of importance in this application, namely:
(a) The citation of the first respondent as a partnership and the other respondents as partners of the first respondent.
(b) The interpretation of annexure âV5â, i.e. whether Steenkamp De Villiers and Coetzee Ingelyf in terms of annexure âV5â was merely to act as agent for Oosthuizen or whether âV5â created an agreement binding on Steenkamp De Villiers en Coetzee Ingelyf to pay the applicant from the proceeds of the sale of the two immovable properties in question.
(c) The applicability of the National Credit Act.
(d) The application for a punishing order of costs against the respondents.
[3] Citation: The first respondent is cited as Steenkamp De Villiers and Coetzee prokureurs and the second, third and fourth respondents are cited as partners of the first respondent and are sued jointly and severally in view of their position as partners.
[4] The application by the applicant is based on a bridging agreement. B.J.J. Oosthuizen was owner of two erven, namely, Erf 27471 and Erf 27472 situated at Vista Park, Extension 163. He borrowed a sum of money from High Point Trading 733 CC. This money would be payable out of the proceeds of the sale of the two erven by the agent Steenkamp De Villiers and Coetzee Ingelyf.
[5] B.J.J. Oosthuizen signed an acknowledgement of dept in favour of the creditor â High Point Trading 733 CC trading as High Point Bridging. The acknowledgement of dept is marked âV3â. This transaction is based on a contract between Oosthuizen and High Point Trading 733 CC. The contract marked âV4â expressly stipulates that Steenkamp De Villiers and Coetzee Ingelyf shall pay the applicant out of the proceeds of the sale of the two immovable properties on the happening of a specific event, i.e. the sale of the two immovable properties.
[6] Steenkamp De Villiers and Coetzee Ingelyf in turn made and signed an undertaking to pay over to High Point Trading 733 CC from the proceeds of the sale of the two immovable properties. The sale occurred but Steenkamp De Villiers en Coetzee Ingelyf did not pay over to High Point Trading 733 CC alleging that there were no proceeds available.
[7] High Point Trading 733 CC now brings an application against Steenkamp De Villiers en Coetzee Ingelyf to pay on the strength of that undertaking, namely âV5â. In the papers before the court the first respondent is not cited as an incorporated company but as a firm of attorneys and the second, third and fourth respondents as partners of the first respondent.
[8] In the opposing affidavit the first respondent objects to this citation and avers that it is not a partnership but an incorporated company incorporated according to the laws of the Republic of South Africa with the registration number 2007/007414/21. The first respondent alleges further that the second, third and fourth respondents are not partners but directors of that incorporated company.
[9] In the replying affidavit the applicant does not respond to this averment which therefore means that this averment is not contested by the applicant. It has not been gainsaid. Moreover, these are motion proceedings and the rule in Plascon-Evans applies in terms of which the respondentsâ averments in this regard would, if there was a dispute of facts, prevail.
[10] In the premises the objection that the wrong parties have been cited ought to be upheld and it becomes unnecessary to deal with the merits of the matter.
[11] The application is dismissed with costs.
_______________
A. SIMELANE, AJ
On behalf of applicant: Adv. N. du Preez
Instructed by:
Strydom & Bredenkamp Attorneys
p/a E G Cooper Majiedt Inc.
BLOEMFONTEIN
On behalf of respondents: Adv. H J Benade
Steenkamp De Villiers & Coetzee Inc.
/sp