Servochem (Pty) Ltd v Geldenhuys and Others (2012/22072) [2017] ZAGPJHC 117 (15 February 2017)

Servochem (Pty) Ltd v Geldenhuys and Others (2012/22072) [2017] ZAGPJHC 117 (15 February 2017)

The court found that the defendants failed to lead any credible evidence to support their allegation that an agreement was concluded with the plaintiff to release them from the suretyship. The shareholders' agreement relied upon by the defendants was not binding on the plaintiff, who was not a party to it, and was irrelevant to the contractual relationship established by the deed of suretyship. The defendants did not produce any documentation or call witnesses to substantiate their claims. The first defendant's belated allegation of fraudulent misrepresentation was not pleaded and was unsupported by evidence. The caveat subscriptor rule applies, binding the defendants to the terms of the...

Citation
[2017] ZAGPJHC 117
Parties
Plaintiff: Servochem (Pty) Ltd; Defendant: Geldenhuis Johannes Stefanus; Defendant: Geldenhuis Johann; Defendant: View Crest Trading 10 (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 February 2017
Case Number
2012/22072
Procedural Posture
Civil Trial / Final Judgment
Outcome
Judgment for the plaintiff. The first and second defendants are ordered to pay the claimed amount, interest, and costs.
Judges
K E Matojane
Legal Topics
Suretyship, Release of Surety, Contractual Liability, Shareholders Agreement, Fraudulent Misrepresentation
Commercial and Corporate Suretyship Release of Surety Contractual Liability Shareholders Agreement Fraudulent Misrepresentation

Case Brief

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Parties

Servochem (Pty) Ltd

Plaintiff

Geldenhuis Johannes Stefanus

Defendant

Geldenhuis Johann

Defendant

View Crest Trading 10 (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the first and second defendants were released from their suretyship obligations to the plaintiff.
  2. 2 Whether the shareholders' agreement between Community Paints shareholders affects the plaintiff's rights under the deed of suretyship.
  3. 3 Whether the defendants proved the existence of an agreement to release them from suretyship.

Ratio Decidendi

The court found that the defendants failed to lead any credible evidence to support their allegation that an agreement was concluded with the plaintiff to release them from the suretyship. The shareholders' agreement relied upon by the defendants was not binding on the plaintiff, who was not a party to it, and was irrelevant to the contractual relationship established by the deed of suretyship. The defendants did not produce any documentation or call witnesses to substantiate their claims. The first defendant's belated allegation of fraudulent misrepresentation was not pleaded and was unsupported by evidence. The caveat subscriptor rule applies, binding the defendants to the terms of the...

Court Disposition

Judgment for the plaintiff. The first and second defendants are ordered to pay the claimed amount, interest, and costs.

Orders

  • The first and second defendants, jointly and severally, are ordered to pay to the plaintiff the sum of R5 305 458.87.
  • Interest thereon at the rate of 11.5% per annum from 25 June 2012 to date of payment.