Plett Building Supplies CC v Mgobo (2906/2013) [2016] ZAECPEHC 60 (22 September 2016)

Plett Building Supplies CC v Mgobo (2906/2013) [2016] ZAECPEHC 60 (22 September 2016)

The court found that the facts, history, and conduct of the parties demonstrated an intention to novate and substitute the previous agreements with the comprehensive cession agreement. The cession agreement replaced the prior obligations and provided for direct payment from the municipality to the applicant, extinguishing the debt owed by Amaxibiso and, by extension, the respondent's liability as surety. The respondent had already made substantial payments towards the principal debt, and further payment from the sale of the Ashton Bay property was forthcoming. Granting judgment by confession would result in the applicant being paid twice for the same debt, which would be unjust. The...

Citation
[2016] ZAECPEHC 60
Parties
Applicant: Plett Building Supplies CC t/a Plett Built It; Respondent: Mlungisi Bongani William Mgobo
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
22 September 2016
Case Number
2906/2013
Procedural Posture
Judgment on Confession / Application for Judgment on Confession Under Rule 31(1)(c) of the Uniform Rules of Court
Outcome
Application dismissed with costs.
Judges
E Revelas
Legal Topics
Judgment on Confession, Novation, Suretyship, Acknowledgment of Debt, Cession
Civil Procedure Commercial and Corporate Judgment on Confession Novation Suretyship Acknowledgment of Debt Cession

Case Brief

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Parties

Plett Building Supplies CC t/a Plett Built It

Applicant

Mlungisi Bongani William Mgobo

Respondent

Procedural Posture

Judgment on Confession / Application for Judgment on Confession Under Rule 31(1)(c) of the Uniform Rules of Court

Legal Issues

  1. 1 Whether the agreement of cession constituted a novation of the prior agreements and extinguished the respondent's liability as surety.
  2. 2 Whether the applicant is entitled to judgment on confession against the respondent under rule 31(1)(c) of the Uniform Rules of Court.
  3. 3 Whether the applicant would be unjustly enriched by obtaining payment twice for the same debt.

Ratio Decidendi

The court found that the facts, history, and conduct of the parties demonstrated an intention to novate and substitute the previous agreements with the comprehensive cession agreement. The cession agreement replaced the prior obligations and provided for direct payment from the municipality to the applicant, extinguishing the debt owed by Amaxibiso and, by extension, the respondent's liability as surety. The respondent had already made substantial payments towards the principal debt, and further payment from the sale of the Ashton Bay property was forthcoming. Granting judgment by confession would result in the applicant being paid twice for the same debt, which would be unjust. The...

Court Disposition

Application dismissed with costs.

Orders

  • The application for judgment on confession is dismissed.
  • The applicant is ordered to pay the costs of the application.