Thrupp Investment Holdings (Pty) Ltd v Goldrick (A5027/05) [2007] ZAGPHC 23; 2008 (2) SA 253 (W) (13 March 2007)

Thrupp Investment Holdings (Pty) Ltd v Goldrick (A5027/05) [2007] ZAGPHC 23; 2008 (2) SA 253 (W) (13 March 2007)

The court held that the certificate of indebtedness clause in the lease agreement could not be relied upon against the respondent as surety, as it was not incorporated into the suretyship. The Customer Detailed Ledger, properly introduced and uncontested in its revised form, constituted prima facie proof of the amount owed for rentals and operating costs, excluding unproven charges for water, electricity, and interest at the Standard Bank rate. The respondent was not entitled to a credit for the sale of fixtures and fittings, as the lessee forfeited such rights under the lease. The special plea of prescription succeeded for amounts older than three years before service of summons, as the...

Citation
[2007] ZAGPHC 23
Parties
Appellant: Thrupp Investment Holdings (Pty) Ltd; Respondent: Thomas Bernard Goldrick
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
13 March 2007
Case Number
A5027/05
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Claim in Court a Quo
Outcome
Appeal upheld; order of court a quo set aside and substituted with judgment for appellant.
Judges
FHD Van Oosten, LI Goldblatt, BH Mbha
Legal Topics
Suretyship, Certificate of Indebtedness, Prescription Act, Burden of Proof, Liquidation Claims
Commercial and Corporate Civil Procedure Suretyship Certificate of Indebtedness Prescription Act Burden of Proof Liquidation Claims

Case Brief

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Parties

Thrupp Investment Holdings (Pty) Ltd

Appellant

Thomas Bernard Goldrick

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Claim in Court a Quo

Legal Issues

  1. 1 Whether the absence of a certificate of indebtedness clause in the suretyship precludes reliance on such a certificate against the surety.
  2. 2 Whether the Customer Detailed Ledger constitutes prima facie proof of the amount of indebtedness.
  3. 3 Whether a portion of the claim has become prescribed under the Prescription Act.

Ratio Decidendi

The court held that the certificate of indebtedness clause in the lease agreement could not be relied upon against the respondent as surety, as it was not incorporated into the suretyship. The Customer Detailed Ledger, properly introduced and uncontested in its revised form, constituted prima facie proof of the amount owed for rentals and operating costs, excluding unproven charges for water, electricity, and interest at the Standard Bank rate. The respondent was not entitled to a credit for the sale of fixtures and fittings, as the lessee forfeited such rights under the lease. The special plea of prescription succeeded for amounts older than three years before service of summons, as the...

Court Disposition

Appeal upheld; order of court a quo set aside and substituted with judgment for appellant.

Orders

  • Judgment is granted jointly and severally with any judgment that may be granted against the first defendant in favour of the plaintiff against the second defendant for payment of the sum of R103,667.82.
  • Interest on the amount above at the rate of 15.5% per annum from 7 March 2003 to date of payment.