Jacobs v De Klerk and Another (984/2019) [2019] ZAFSHC 112 (4 July 2019)

Jacobs v De Klerk and Another (984/2019) [2019] ZAFSHC 112 (4 July 2019)

The court found that the resignation agreement and the acknowledgement of debt relate to an underlying loan agreement that is exempted from the National Credit Act. The first defendant did not receive any loan or credit from the plaintiff; his obligation arose from his undertaking to pay the second defendant's admitted indebtedness. Applying the principles from Ratlou and Ribeiro, the agreements in question are credit guarantees, but since the underlying loan agreement is exempted from the Act, these agreements are also exempted. The plaintiff is not required to register as a credit provider, and the first defendant does not have a bona fide defence. The requirements for summary judgment...

Citation
[2019] ZAFSHC 112
Parties
Plaintiff: Embrentia Jacobs; Defendant: Barend Jacobus De Klerk; Defendant: Lejwe Crushers (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 July 2019
Case Number
984/2019
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Delivery of Notice of Intention to Defend.
Outcome
Summary judgment granted in favour of the plaintiff against the first defendant.
Judges
S.G. Meintjes
Legal Topics
Acknowledgement of Debt, Credit Agreements Exemption, National Credit Act, Summary Judgment, Credit Guarantee
Commercial and Corporate Civil Procedure Acknowledgement of Debt Credit Agreements Exemption National Credit Act Summary Judgment Credit Guarantee

Case Brief

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Parties

Embrentia Jacobs

Plaintiff

Barend Jacobus De Klerk

Defendant

Lejwe Crushers (Pty) Ltd

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Delivery of Notice of Intention to Defend.

Legal Issues

  1. 1 Whether the resignation agreement and the acknowledgement of debt agreement constitute credit agreements under section 8 of the National Credit Act.
  2. 2 Whether the agreements are exempted from the provisions of the National Credit Act.
  3. 3 Whether the first defendant has a bona fide defence to the plaintiff's claim.

Ratio Decidendi

The court found that the resignation agreement and the acknowledgement of debt relate to an underlying loan agreement that is exempted from the National Credit Act. The first defendant did not receive any loan or credit from the plaintiff; his obligation arose from his undertaking to pay the second defendant's admitted indebtedness. Applying the principles from Ratlou and Ribeiro, the agreements in question are credit guarantees, but since the underlying loan agreement is exempted from the Act, these agreements are also exempted. The plaintiff is not required to register as a credit provider, and the first defendant does not have a bona fide defence. The requirements for summary judgment...

Court Disposition

Summary judgment granted in favour of the plaintiff against the first defendant.

Orders

  • The first defendant is ordered to pay the amount of R1 685 289.00 to the plaintiff.
  • The first defendant is ordered to pay interest on the amount of R1 685 289.00 a tempore morae, calculated at 10% per annum from 30 September 2018 until date of final payment, in accordance with the Prescribed Rate of Interest Act, 55 of 1975.