Van Heerden and Another v MT Earthmoving CC and Others (CIV APP FB20/2023) [2025] ZANWHC 3; [2025] 1 All SA 822 (NWM) (6 January 2025)

Van Heerden and Another v MT Earthmoving CC and Others (CIV APP FB20/2023) [2025] ZANWHC 3; [2025] 1 All SA 822 (NWM) (6 January 2025)

The court found that the defence of adjectus solutionis gratia was not properly pleaded or established by the defendants, and that the first plaintiff was in fact an adstipulator entitled to payment under the joint ventures and loan agreement. The evidence showed that payments made by the defendants were at the direction of the first plaintiff, but this did not constitute an agreement for payment to a solutionis causa adjectus. The set-off defence for the FAW truck and trailer and loader transport was supported by the plaintiffs' own documentation, which reflected these deductions. The joint ventures had failed, and only the loan agreement remained relevant. The court held that the...

Citation
[2025] ZANWHC 3
Parties
Appellant: Willem Jacobus Van Heerden; Appellant: Alana Van Heerden; Respondent: MT Earthmoving CC; Respondent: Melchoir Jacobus Terblanche; Respondent: Brenda Terblanche
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
6 January 2025
Case Number
CIV APP FB20/2023
Procedural Posture
Civil Appeal / Appeal From Judgment of Court a Quo, Heard Before Full Court With Leave
Judges
Petersen, S Mfenyana, T Masike
Legal Topics
Set Off, Loan Agreement, Suretyship, Adjectus Solutionis Gratia, Joint Venture, Tender of Payment
Commercial and Corporate Civil Procedure Set Off Loan Agreement Suretyship Adjectus Solutionis Gratia Joint Venture Tender of Payment

Case Brief

Summary, issues, holding and outcome

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Parties

Willem Jacobus Van Heerden

Appellant

Alana Van Heerden

Appellant

MT Earthmoving CC

Respondent

Melchoir Jacobus Terblanche

Respondent

Brenda Terblanche

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Court a Quo, Heard Before Full Court With Leave

Legal Issues

  1. 1 Whether the defendants were permitted to apply set-off for the delivery of a FAW truck and trailer at an agreed amount of R1 150 000.00 against a loan.
  2. 2 Whether the defendants were entitled to rely on the defence of adjectus solutionis gratia/solutionis causa adjectus.
  3. 3 Whether the court a quo failed to deal with or record the tender by the defendants of R176 140.00 to the plaintiffs.

Ratio Decidendi

The court found that the defence of adjectus solutionis gratia was not properly pleaded or established by the defendants, and that the first plaintiff was in fact an adstipulator entitled to payment under the joint ventures and loan agreement. The evidence showed that payments made by the defendants were at the direction of the first plaintiff, but this did not constitute an agreement for payment to a solutionis causa adjectus. The set-off defence for the FAW truck and trailer and loader transport was supported by the plaintiffs' own documentation, which reflected these deductions. The joint ventures had failed, and only the loan agreement remained relevant. The court held that the...