Shames N.O and Others v Body Corporate of Victoria and Edward Court (A535/17) [2019] ZAGPPHC 635 (2 December 2019)

Shames N.O and Others v Body Corporate of Victoria and Edward Court (A535/17) [2019] ZAGPPHC 635 (2 December 2019)

The court held that the loan agreement, specifically clauses 4 and 7, required the body corporate to pay interest and capital from levies received and collected arrear levies on a monthly basis, not only upon termination of the agreement. The use of peremptory language ('shall') in these clauses indicated that payment obligations were triggered by the receipt of levies. The court found that the debt became due and payable as soon as levies were received, which started the prescription period under section 12(1) of the Prescription Act. The appellants' interpretation that payment was only due upon termination was rejected as inconsistent with the contract's wording and commercial purpose....

Citation
[2019] ZAGPPHC 635
Parties
Appellant: Shames, Kelvin David N.O; Appellant: Hahn, Gregory Marc N.O; Appellant: Ucosiselelo (Pty) Limited; Appellant: Lemasa Investment (Pty) Limited; Appellant: Waverley Centenary (Pty) Limited; Respondent: Body Corporate of Victoria and Edward Court
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 December 2019
Case Number
A535/17
Procedural Posture
Civil Appeal / Appeal From Judgment and Order of the Court a Quo
Outcome
Appeal dismissed. Costs awarded against appellants, including costs of senior counsel.
Judges
Mavundla, J.W. Louw, P.D Kekana
Legal Topics
Prescription Act, Loan Agreement Interpretation, Statutory Duties of Body Corporate, Contractual Interest, Debt Due Date
Civil Procedure Commercial and Corporate Prescription Act Loan Agreement Interpretation Statutory Duties of Body Corporate Contractual Interest Debt Due Date

Case Brief

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Parties

Shames, Kelvin David N.O

Appellant

Hahn, Gregory Marc N.O

Appellant

Ucosiselelo (Pty) Limited

Appellant

Lemasa Investment (Pty) Limited

Appellant

Waverley Centenary (Pty) Limited

Appellant

Body Corporate of Victoria and Edward Court

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment and Order of the Court a Quo

Legal Issues

  1. 1 Whether the plaintiffs' claim had prescribed under the Prescription Act.
  2. 2 Whether the debt became due and payable only upon termination of the loan agreement or upon receipt of levies.
  3. 3 Whether the respondent discharged the onus of proving prescription.

Ratio Decidendi

The court held that the loan agreement, specifically clauses 4 and 7, required the body corporate to pay interest and capital from levies received and collected arrear levies on a monthly basis, not only upon termination of the agreement. The use of peremptory language ('shall') in these clauses indicated that payment obligations were triggered by the receipt of levies. The court found that the debt became due and payable as soon as levies were received, which started the prescription period under section 12(1) of the Prescription Act. The appellants' interpretation that payment was only due upon termination was rejected as inconsistent with the contract's wording and commercial purpose....

Court Disposition

Appeal dismissed. Costs awarded against appellants, including costs of senior counsel.

Orders

  • The appeal is dismissed.
  • The appellants are jointly and severally ordered to pay the costs of the appeal, including the costs of engaging senior counsel.