Van Der Horst and Another v Parreira and Another (2021/10867) [2023] ZAGPJHC 639 (7 June 2023)

Van Der Horst and Another v Parreira and Another (2021/10867) [2023] ZAGPJHC 639 (7 June 2023)

The court found that the first defendant had bound himself as surety and co-principal debtor for the company’s debt to the plaintiffs. The defences raised by the first defendant were found to be technical and lacking in material particularity. The defendant admitted the loan was advanced and not repaid, and did not dispute his suretyship. The court held that the benefit of excussion was not available to the first defendant, as he had bound himself as co-principal debtor. Allegations of misappropriation and de facto control by the plaintiffs were unsupported by material facts. The court concluded that the defendants failed to disclose a bona fide defence, and summary judgment was warranted.

Citation
[2023] ZAGPJHC 639
Parties
Plaintiff: Rein Van Der Horst; Plaintiff: Joseph Brian Gubbins; Defendant: Daniel Parreira; Defendant: Omniware Enterprise Solutions
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 June 2023
Case Number
2021/10867
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Institution of Action for Payment and Other Relief.
Outcome
Summary judgment granted against the first defendant for payment of the claimed amount, interest, and costs.
Judges
Malungana
Legal Topics
Suretyship, Shareholders Agreement, Summary Judgment, Loan Repayment, Beneficium Excussion
Commercial and Corporate Civil Procedure Suretyship Shareholders Agreement Summary Judgment Loan Repayment Beneficium Excussion

Case Brief

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Parties

Rein Van Der Horst

Plaintiff

Joseph Brian Gubbins

Plaintiff

Daniel Parreira

Defendant

Omniware Enterprise Solutions

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Institution of Action for Payment and Other Relief.

Legal Issues

  1. 1 Whether the first defendant is liable as surety and co-principal debtor for the company’s debt to the plaintiffs.
  2. 2 Whether the defences raised by the first defendant constitute a bona fide defence to the plaintiffs’ claim.
  3. 3 Whether the benefit of excussion applies to the first defendant under the deed of suretyship.

Ratio Decidendi

The court found that the first defendant had bound himself as surety and co-principal debtor for the company’s debt to the plaintiffs. The defences raised by the first defendant were found to be technical and lacking in material particularity. The defendant admitted the loan was advanced and not repaid, and did not dispute his suretyship. The court held that the benefit of excussion was not available to the first defendant, as he had bound himself as co-principal debtor. Allegations of misappropriation and de facto control by the plaintiffs were unsupported by material facts. The court concluded that the defendants failed to disclose a bona fide defence, and summary judgment was warranted.

Court Disposition

Summary judgment granted against the first defendant for payment of the claimed amount, interest, and costs.

Orders

  • The first defendant is ordered to pay to the first and second plaintiffs the amount of R750,000.00.
  • Interest at the rate of 7% per annum on the aforesaid amount from date of summons to the date of final payment.