Liberty Group Limited v CFS Solutions (PTY) Ltd and Another (1395/2022) [2023] ZAFSHC 15 (23 January 2023)

Liberty Group Limited v CFS Solutions (PTY) Ltd and Another (1395/2022) [2023] ZAFSHC 15 (23 January 2023)

The court found that the defendants failed to discharge the onus to show, on a balance of probabilities, that Liberty Group Limited would not succeed in the main action. The only financial record provided by the defendants did not support their defence, and Liberty's explanation regarding the calculation of the debt and the meaning of the commission statements was rational and credible. The defendants withheld relevant documentation and did not present a bona fide defence. The requirements set out in Twee Jonge Gezellen for escaping provisional sentence were not met, and the court was satisfied that the amount claimed was owed in terms of the Acknowledgment of Debt and Deed of Suretyship....

Citation
[2023] ZAFSHC 15
Parties
Plaintiff: Liberty Group Limited; Defendant: CFS Solutions (PTY) Ltd; Defendant: Ishmael Thami Linda
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 January 2023
Case Number
1395/2022
Procedural Posture
Provisional Sentence Application / Judgment After Hearing on Provisional Sentence Summons
Outcome
Provisional sentence granted against the first and second defendants, jointly and severally, the one paying the other to be absolved.
Judges
S Naidoo
Legal Topics
Provisional Sentence, Acknowledgment of Debt, Suretyship, Commission Dispute
Civil Procedure Commercial and Corporate Provisional Sentence Acknowledgment of Debt Suretyship Commission Dispute

Case Brief

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Parties

Liberty Group Limited

Plaintiff

CFS Solutions (PTY) Ltd

Defendant

Ishmael Thami Linda

Defendant

Procedural Posture

Provisional Sentence Application / Judgment After Hearing on Provisional Sentence Summons

Legal Issues

  1. 1 Whether the defendants have discharged the onus to show, on a balance of probabilities, that the plaintiff will not succeed in the main action.
  2. 2 Whether the amount claimed by the plaintiff is owed by the defendants in terms of the Acknowledgment of Debt and Deed of Suretyship.
  3. 3 Whether the defendants' defence that the debt has been paid is bona fide and supported by evidence.

Ratio Decidendi

The court found that the defendants failed to discharge the onus to show, on a balance of probabilities, that Liberty Group Limited would not succeed in the main action. The only financial record provided by the defendants did not support their defence, and Liberty's explanation regarding the calculation of the debt and the meaning of the commission statements was rational and credible. The defendants withheld relevant documentation and did not present a bona fide defence. The requirements set out in Twee Jonge Gezellen for escaping provisional sentence were not met, and the court was satisfied that the amount claimed was owed in terms of the Acknowledgment of Debt and Deed of Suretyship....

Court Disposition

Provisional sentence granted against the first and second defendants, jointly and severally, the one paying the other to be absolved.

Orders

  • Provisional sentence is granted against the first and second defendants in the amount of R1,793,972.98.
  • The first and second defendants are ordered to pay interest on the aforesaid amount at the rate of 7% per annum.