Standard Bank of South Africa Ltd v Scholtz and Other (40748/2017) [2019] ZAGPJHC 374 (6 September 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED

CASE NO: 40748/2017

6/9/2019

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA LTD

PLAINTIFF

and

SUZANNE SCHOLTZ

FIRST

DEFENDANT

DANIE JOHAN SCHOLTZ

SECOND DEFENDANT

LAZARUS TSHOKOLO SWARTS

THIRD DEFENDANT

REFILWE PATRICIA MOHLOBANE

FOURTH DEFENDANT

J U D G M E N T

VAN OOSTEN J:

Introduction

[1] This is an exception to the plaintiff’s amended particulars of claim noted by the first and second defendants (the excipients)

[2] The plaintiff sues the defendants in their capacities as sureties and co-principal debtors of the principal debtor, Zevoli Industrial Supplies (Pty) Ltd, for payment of certain outstanding amounts consequent upon the cancellation of 13 instalment sale agreements, concluded between the plaintiff and the principal debtor. The principal debtor was placed in provisional liquidation in terms of an order of this court, dated 1 August 2017.

[3] The excipients have delivered altogether three notices of exception, pursuant to three notices to remove cause of complaint and the plaintiff has amended its particulars of claim thrice. The exception now before me was delivered on 29 March 2019.

The grounds of exception

[4] The excipients have raised four grounds of exception, all of which concern the amounts claimed by the plaintiff. First, that the plaintiff has failed to set out not only the basis and grounds upon which interest was charged but also the applicable rate of interest. Second, that the plaintiff has failed to provide the market value of each of the vehicles referred to in each instalment sale agreement, as at the time of cancellation of each instalment sale agreement, in order to comply with the requirements for claiming the outstanding balance after cancellation, as provided for in clause 10.1.3 read with clause 10.3 of each agreement. Third, that the plaintiff’s calculation in respect of its claim amount is ‘non-sensical’. Fourth and last, that the plaintiff has failed to specify whether it is claiming damages and the difference between the outstanding amounts and/or the

difference between the amount outstanding and the market value of the vehicle as at cancellation.

Evaluation

[5] The first ground of exception is short-lived. The calculation of interest and the rate of interest that was applied, are capable of further clarification by way of the numerous pre-trail procedures which the excipients can avail themselves of (Jowell v Bramwell Jones 1998 (1) SA 836 (W) 899). For present purposes, I do not consider it necessary to consider the non-sensical ground, although it not without merit.

Finally, as for the fourth ground of objection, it became common ground in argument that the plaintiff is not claiming damages.

[6] That leaves only the second ground of exception for determination. The point of departure is to examine the contractual provisions pertaining to the amounts claimed. Clause 10 deals with remedies. Clause 10.1.3 affords the plaintiff the right of cancellation in the event of the principal debtors’ default. The plaintiff’s particulars of claim allege both the default and the consequent cancellation, which for present purposes must be accepted as correct (Marney v Watson and Another 1978 (4) SA 140 (C) 144F-G). In regard to the steps the plaintiff may take after cancellation, clause 10.1.3 provides for taking ‘possession of the goods and claim from you damages as well as the outstanding balance less the market value of the goods as at the date of cancellation’. Except for not claiming damages, the remainder of the quoted portion constitutes the basis of the plaintiff’s claims in respect of the amounts claimed.

[7] The plaintiff pleads that the goods were re-possessed and that each vehicle was valued in respect of which valuation reports are attached. In terms of clause 10.3 the plaintiff was entitled to choose an independent appraiser whose valuation will be final and binding. The difficulty arising is that the valuation in each instance was performed long after cancellation, in some instances two years after the date of cancellation, without any indication as to the market value as at the date of cancellation. Counsel for the plaintiff readily and in my view correctly, conceded that the plaintiff has not pleaded sufficient information to bring its claims within the purview of s 10.1.3.

[8] The valuation for the determination of the market value as at the date of cancellation is material to the plaintiff’s claim. In the absence of an allegation to that effect, no cause of action has been made out. The ground of objection accordingly strikes at the sustainability of the plaintiff’s claim. Upholding this ground of exception has the result that the plaintiff’s particulars of claim fail to disclose a cause of action as to the amounts claimed.

[9] It follows that the paragraphs of the plaintiff’s particulars of claim dealing with the amounts claimed, fall to be struck out on the basis of those paragraphs failing to disclose case of action.

Order

[8] In the result the following order is made:

1. The exception is upheld.

2. Paragraphs 16 to 22 of the plaintiff’s particulars of claim are struck out.

3. The plaintiff is granted leave to amend the plaintiff’s particulars of claim within 15 days of the date of this order, failing which the defendants may approach this court, on the same papers, for further relief.

4. The plaintiff is to pay the costs of the exception.

(Original signed)

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR 1ST& 2ND

DEFENDANTS (EXCIPIENTS) ADV JG DOBIE

EXCIPIENTS’ ATTORNEYS

CHRIS FOURIE ATTORNEYS

COUNSEL FOR PLAINTIFF

(RESPONDENT)

ADV GH MEYER

RESPONDENT’S ATTORNEYS ROY SUTTNER ATTORNEYS

DATE OF HEARING

3 SEPTEMBER 2019

DATE OF ORDER

3 SEPTEMBER 2019

DATE OF JUDGMENT

6 SEPTEMBER 2019