Mzondeki v Moraka (A3070/2016) [2017] ZAGPJHC 118 (28 February 2017)

Mzondeki v Moraka (A3070/2016) [2017] ZAGPJHC 118 (28 February 2017)

The respondent was expressly identified as the surety in the Deed of Suretyship, which he admitted signing and initialling. His defence of being a 'co-creditor' was unsupported by any evidence and legally untenable. The Magistrate erred in relying on the positioning of the respondent's signature to infer a different intention, especially given the respondent's legal qualifications and the clear terms of the agreement. The respondent's initial denial of signature and accusation of forgery were abandoned and contradicted his subsequent defence. The belated jurisdictional objection was unsustainable due to the express consent to jurisdiction. The appeal was upheld, the Magistrate's order set...

Citation
[2017] ZAGPJHC 118
Parties
Appellant: Kholeka Winifred Mzondeki; Respondent: Job T Moraka
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 February 2017
Case Number
A3070/2016
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; Magistrate's order set aside and substituted with judgment against respondent for R300,000, interest, and attorney and client costs.
Judges
GB Rome, FHD Van Oosten
Legal Topics
Suretyship, Money Judgment, Attorney and Client Costs, Jurisdiction, Pleading and Proof
Civil Procedure Commercial and Corporate Suretyship Money Judgment Attorney and Client Costs Jurisdiction Pleading and Proof

Case Brief

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Parties

Kholeka Winifred Mzondeki

Appellant

Job T Moraka

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the respondent was bound by the Deed of Suretyship he signed.
  2. 2 Whether the respondent's defence of being a 'co-creditor' was legally sustainable.
  3. 3 Whether the respondent's denial of signature and accusation of forgery were credible.

Ratio Decidendi

The respondent was expressly identified as the surety in the Deed of Suretyship, which he admitted signing and initialling. His defence of being a 'co-creditor' was unsupported by any evidence and legally untenable. The Magistrate erred in relying on the positioning of the respondent's signature to infer a different intention, especially given the respondent's legal qualifications and the clear terms of the agreement. The respondent's initial denial of signature and accusation of forgery were abandoned and contradicted his subsequent defence. The belated jurisdictional objection was unsustainable due to the express consent to jurisdiction. The appeal was upheld, the Magistrate's order set...

Court Disposition

Appeal upheld; Magistrate's order set aside and substituted with judgment against respondent for R300,000, interest, and attorney and client costs.

Orders

  • The appeal is upheld.
  • The order of the court a quo is set aside and substituted with: The second defendant is ordered to pay to the plaintiff: (i) The sum of R300,000.00; (ii) Interest on the amount at 12% per annum from 23 February 2012 to date of final payment; (iii) Costs of suit on the attorney and client scale.