THE
HIGH COURT OF SWAZILAND
HELD
AT MBABANE
Civil
Case No. 2180/2003
In
the matter between
CALSIMENT
(PTY) LIMITED Plaintiff
And
NDUMISO
NTSHANGASE Defendant
Coram
Annandale, ACJ
For
Plaintiff Ms Kunene
For
Defendant Ms Zwane
JUDGMENT
March, 2004
This
is an opposed application for summary judgment wherein the plaintiff
seeks payment of EI8 871-48 in respect of goods sold and delivered,
with interest at 20% per annum from the 1st February 2003 to the 11th
June, 2003 and 18,5% thereafter, with costs on attorney/client scale.
Over
and above the usual course of events relating to the affidavits in
support of and opposing the application, which I will revert to
further down, there was also an opposed application for security for
costs. This required of the plaintiff company, a peregrinus, to pay
security in the amount of E15 000. Plaintiff disputed the amount only
and invoked
2
Rule
47(2), calling upon the Registrar to determine the amount. The
outcome thereof remains unknown to the Court. After the plaintiff set
the matter down to hear the application for summary judgment, the
defendant sought the application to be set aside under Rule 30,
averring it to be an irregular step as the Rule 47(2) determination
was still pending. The complaint of irregularity fell away as the
Rule 30 notice was withdrawn, with costs tendered by the defendant.
This pleading was negligently omitted from the Book of Pleadings
prepared and filed by the plaintiff's attorneys. It does however seem
as if the issue of security for costs was somehow resolved.
The
cause of action against the defendant is stated in paragraph 5 of the
particulars of claim. "Asibemunye Building Suppliers (Ebuhleni)
- hereafter referred to as Asibemunye - has failed to pay the sum of
E18 871.48 due and payable to the plaintiff for the goods delivered
from 1st February 2003 as appears from copy of statement. "
Although it omits to aver that the goods were sold and delivered, the
point was not pursued and nothing further turns on it. The matter
proceeded on the basis that the claim arises from goods sold and
delivered, which was not paid.
A
further defect in plaintiff's particulars of claim appears in
paragraph 3.1 where it states that:-
"The
agreed interest was prime which at present is 15.5%". This is at
odds with prayer 2, where interest is sought to be ordered at:
"...the
rate of 20% per annum calculated from 1st February 2003 to 11th June,
2003, and 18.5% per annum from 12th June 2003 to date of payment. "
The
terms and conditions of agreement of sale and suretyship relating
thereto, an integral part of the application for credit facilities
from the plaintiff, records in paragraph 2
thereof
that;-
3
"Interest
at the prime rate of interest charged by the seller's bank, from time
to time plus 5% (three percentum) shall be payable on all accounts 30
(thirty) days-after delivery of statement. "
This
anomaly was also not pursued by the defendant, neither on the papers,
nor argued in court There remains no allegation or proof of what rate
of interest was charged by plaintiff's bank at the relevant times or
on what basis the claimed rates of interest was founded and
calculated.
At
the hearing of argument none of the abovementioned anomalies were
pursued but the defendant's attorney argued that the whole of the
"agreement" was invalid and that in the event that the
Court does not find the agreement to be null and void, the defendant
"challenges costs and interest."
The
argument did not take the issue any further or ventilate any reasons
for this "challenge". No reasons were advanced as to why
interest should not be as it was claimed, nor why costs should be on
any particular scale, if at all, save for the bare and blanket
assertion that the whole of the agreement in respect of the credit
facilities, terms and conditions of sale and the suretyship itself is
not worth the paper it is written on. The aspects of the rate of
interest and scale of costs do indeed depend upon the validity or
otherwise of the agreement and will be dealt with in fine of this
judgment.
Before
dealing with the essential merits of the opposition to the
application, there is one further aspect, which relates to the
question of whether indeed the goods were delivered to the
defendant's company.
Initially
it was disputed whether the delivery note or invoice correctly
reflected that the goods were received by Asibemunye. The origin of
the delivery note and whether the receiving entity signed for
delivery was in issue, as was actual delivery and price. This
question was settled prior to the hearing, at which Ms Zwane stated
in Court that the
4
defendant
does not anymore pursue the point of her client not having received
the goods, as initially raised in the affidavit resisting summary
judgment
I
now turn to address the merits. From the papers filed herein, one of
the former Skonkwane franchises (now in liquidation) traded as
Asibetnunye (Building Suppliers, Ebuhleni Ltd). Represented by its
director, Ndumiso Ntshangase (the defendant), the company applied for
credit facilities with a supplier, Calsiment (Pty) Ltd, a company in
Middelburg, South Africa. The application reflects some details of
the applicant, including one of its two directors being the
defendant. It is marked as "Annexure "A"".
On
the second page of the "Application for Credit Facilities",
following immediately after the applicant's details, the same
document continues with a heading "Terms and Conditions of
Agreement of Sale and Suretyship relating thereto, entered into by
and between Calsiment (Pty) Ltd (the "seller") and (the
"Applicant") referred to above, hereinafter called the
"Purchaser" "
Under
a subheading "It is agreed that", some 20 paragraphs which
details the contractual relationship follows. I quote five of them.
"1.
The invoice price reflected on the seller's invoice in respect of
purchase shall be paid by the purchaser... "
"2.
Interest at the prime rate of interest charged by the seller's bank,
from time to time, plus 3% (three percentum) shall be payable on all
accounts 30 (thirty) days after delivery of statement. "
"8
...The purchaser agrees to be liable to the seller for all legal
costs calculated as between attorney and own client and collection
commission. "
"15.
The person/persons who are appending their signatures hereunder on
behalf of the purchaser, hereby bind himself/themselves as surety/ies
and co-
5
principal
debtor/s in solidum unto and in favour of the seller in respect of
all the obligations of the purchaser in terms hereof and furthermore
agree and undertake to be bound to the terms and conditions of this
agreement, under remuneration (sic) of the benefits of excussion and
division, the effect and working whereof they hereby declare
themselves to be acquainted." (My emphasis)
16.
A signed delivery note shall be prima facie proof that the goods have
been duly delivered to and received by the purchaser in good
condition, whether signed by the purchaser, an employee, an agent or
representative
of
the purchaser."
At
the end of the 20 clauses, on page three of the document, the date
and place of signature is inserted in manuscript and the signature of
Ndumiso Ntshangase as director (of the applicant/purchaser/surety) is
appended. Underneath the signature appears the printed words: "Who
acknowledges that he has read and understands the entire contents
hereof." These words are to a great extent a repetition of the
last (underlined) words in clause 15, quoted above.
The
language that is used to describe the contractual terms are as best
as it can be in plain straightforward English, which is the lingua
franca of the business world in Swaziland. Notably, clause 15 does
not refer to a renunciation of the "beneficium ordinis seu
excussionis", the legal term in generally incomprehensible
Latin, but simply refers to "the benefits of excussion and
division." This was twice acknowledged to be understood by the
defendant, under his signature and immediately following these words
in clause 15 of the contract.
There
is one further aspect of the contract between the parties which I
noted, but which was not pursued in either the papers or during
argument. Clause 15 of the agreement, which deals with suretyship,
contains provision for the renunciation of the benefits of the
excussion and division. However, the word used in the text is not
"renunciation" but
6
"remuneration".
The reason for this incorrect choice of word is unknown, was not
argued and was not pursued.
In
my view, the use of this incorrect word, which has a totally
different meaning to that which should have been used and which,
judging from the context of the phrase and the clause itself, does
not convey anything like the intended meaning, has no detrimental
consequence. It is quite clear that "renunciation" was the
intent, and not "remuneration."
From
the defendant's affidavit, it does not seem that he had it otherwise
either. Paragraph 6.1 reads that".. .and therefore renunciating
the benefits..." He does not quote the word "remunerating"
when he refers to the concepts that he says which were allegedly not
explained to him, notarially so.
There
is no prejudice to the plaintiff that was raised as issue and the
Court regards the anomaly of word choice as non-determinative to the
matter.
With
all other relevant aspects of the application being equal, the only
real point of contention that needs to be decided is whether the
defendant is liable for the debt of the company, for the purposes of
summary judgment.
In
his affidavit resisting summary judgment, the defendant states that
annexure "A" "is a meaningless document in that it
purports to bind myself as co-principal debtor and surety, I am
advised and submit that this is fraudulent in that the plaintiff
ought to have notorially (sic) explained to myself the implications
of signing the agreement as co-principal debtor/surety and therefore
renunciating the benefits of excussion and division, which never
happened in this case, "
Strong
words indeed. In my version of the Concise Oxford Dictionary (7th
edition, 1987) the word "fraudulent" is defined as :
"adjective: guilty of, of the nature of, characterised or
effected by, fraud", which in turn is defined as: "criminal
deception, use of false representations to gain unjust advantage;
dishonest artifice or trick...deceitfulness."
7
What
the defendant effectively means to convey as defence to the claim is
that through dishonest chicanery and trickery by the plaintiff, he
was criminally and unjustly deceived by false pretences and
representations, to gain an unfair disadvantage over him.
Since
the time he signed the credit application, terms and conditions of
sale and the suretyship, the defendant benefited from the credit
granted to him by the plaintiff. From October 2001 until summary
judgment summons was served on the 8th September 2003, some two years
later, he was complacent and satisfied to have the available credit
from one of his suppliers. When times became difficult and he or his
company would soon not be able to continue to pay his supplier of
goods to be used in bis trading business, he still placed a further
order amounting to over E21 000 for 680 bags of cement. It was
delivered to his business, but it could not be paid for as per bis
credit arrangements with the supplier, the plaintiff company.
After
summons was issued for payment, acting fully within his legal rights,
he demanded security for his legal costs in the amount of E15 000,
almost as much as his business was sued for. Again, acting fully
within his legal rights, for which he again does not stand to be
blamed for, he entered his opposition to resist summary judgment. His
initial point of not having received the delivery note attached to
the summons, fell by the wayside. So did his further initial point of
denying the validity of the delivery note, and stating that he "never
received delivery of the goods stated.", which was raised as a
defence.
The
last and final straw to which the defendant clutches against summary
judgment is that it was not notarially explained to him what the
meaning was of what he signed to, when applying for credit and
binding himself as surety and co-principal debtor for the company on
behalf of which he sought credit. He makes unfounded and vexatious
accusations against his erstwhile benefactor by slandering it with
accusations of fraud.
8
This
is based on his exception against the seller not notarially
explaining to him, and certifying so, "the implications of
signing the agreement as co-principal debtor/surety and therefore
renunciating the benefits of excussion and division."
The
daily and usual practice of credit applications is that some form of
security is required. In the present matter, the plaintiff sought and
obtained the defendant to be a surety for his company, Asibemunye.
The defendant is not an illiterate "man from the street".
He is a director of a company. When he applied on behalf of his
company for credit from the plaintiff company, he did so knowingly
what it was that he sought. He sought that goods be supplied against
the terms and conditions that were part and parcel of the deal.
Payment had to be effected thirty days after invoice. Delivery had to
be acknowledged by his company against signature of its employee or
representative. Interest had to be paid on accounts not settled
within thirty days, and so on. Further, and most importantly, he
stood surety for his company.
When
the defendant signed the agreement, right underneath his signature,
on the very next line, it is clearly printed on the document that he
acknowledges and understands the entire contents of the agreement.
The "fine print" of the terms and conditions of the credit
application and suretyship is not printed in illegible tiny
characters. It is readily readable. As a matter of course there were
terms and conditions that were to be applied to the application for
and granting of credit, one of them being that the defendant was to
stand as surety and co-principal debtor for the potential debts of
his business enterprise.
In
NATIONAL AND OVERSEAS DISTRIBUTORS CORPORATION (PTY) LTD v POTATO
BOARD, 1958(2) SA 473 (AD) at 479, Schreiner, J.A. said:-
"Our
law allows a party to set up his own mistake in certain circumstances
in order to escape liability under a contract into which he has
entered. But where the other party has not made any misrepresentation
and has not appreciated at the time of acceptance that his offer was
being accepted under a misapprehension, the scope for a defence of
unilateral mistake is very narrow, if
9
it
exists at all. At least the mistake (error,) would have to be
reasonable (Justus) and it would have to be pleaded."
Based
on this statement of law, Miller, J in DIEDERICKS v MINISTER OF LANDS
1964(1) SA 49 (N), said that:
"Clearly,
a mistaken belief of fact will not release a party from the
consequences of an agreement which manifests his assent to the terms
thereof unless it is a mistake of such a type or nature that it
negativates consent; in other words, it must be shown that because he
laboured under that mistake in concluding the agreement his consent
to the terms thereof, although apparent, was not real. "
In
the matter now before me, the defendant cries foul of the contract he
entered into on the basis that the terms and conditions and the
legalities of suretyship were not notarially explained to him. Most
importantly to him is his assertion that he did not know what the
renunciation of the benefits of excussion and division meant.
Quite
correctly, when a surety binds himself or herself as surety and
co-principal debtor, a defence of excussion and division can be
pleaded. It cannot however be done if that has been renounced in the
contract. See GERBER v WOLSON 1955(1) SA 158(A) and NEON & COLD
STORAGE CATHODE ILLUMINATIONS (PTY) LTD v EPHRON 1978(1) SA463(A).
In
the present matter, there are no co-sureties to share the burden.
Division of the claim amongst them cannot be pleaded in this matter.
As mentioned earlier in this judgment, the defendant's company,
Asibemunye, has been placed under liquidation some time ago. It has
not been pleaded, nor is it the case, that the plaintiff first had to
sue the company, Asibemunye, before it could be allowed to proceed
against the defendant qua surety and co-principal debtor. If that was
the case, which it is not, the defendant would at least have had the
benefit of a dilatory plea. See WORTHINGTON v WILSON, 1918 TPD 104 at
107.
10
The
benefit of excussion, or discussion as it is also sometimes called
tbeneficium ordinis -seu excussionis), is the right of the surety
against the creditor to have him proceed against the principal debtor
with a view of obtaining payment from him, if necessary by execution
upon his assets, before turning to the surety for payment of the debt
or of so much of it as remains unpaid. This is in consonance with the
principle of the nature of a contract of suretyship, that the surety
guarantees performance of his obligation by the principal debtor,
undertaking to pay if he does not do so. (See The Law of Suretyship
in SA by the Hon. L.R. Caney, 2nd edition, 1970 page 101 et sequiter
for a comprehensive exposition of the law in this regard.)
The
defendant pleads in his affidavit resisting summary judgment, and his
case was argued on that basis, that he disputes liability as a
surety. As already said, his case is that the whole of the contract,
the suretyship especially so, is invalid and that he denies the very
existence thereof, said to have been "fraudulently"
obtained. He did not plead non-excussion of the principal debtor, his
company. His complaint is that the effect of renouncing the benefits
of excussion and division was not explained to him, notarially so,
and further, what is understood by being a surety and co-principal
debtor.
A
surety who does not have the benefit of excussion is in the same
position as an ordinary debtor, and indeed as the principal debtor.
He may be sued as soon as the principal debtor is in default, if
payment of the debt is due and the principal debtor itself could be
sued at the time. Where this benefit has not been renounced, the
creditor would first have to exhaust his remedies against the
principal debtor before turning to the surety.
I
am not aware that the defendant might be a woman and it is not so
pleaded either. This makes it difficult to understand why he would
plead that renunciation of the benefits of excussion and division,
and of what the implications of signing the contract as co-principal
debtor/surety meant, having perforce to have been explained
notarially to him . In my view, such a situation would only arise if
the surety was a married woman, and further, if she renounced the
benefits of the Senatus Consultum Velleianum or the
11
Authentica
si qua mulier. The former prohibited, in A.D.46, every woman, married
or not, from interceding in respect of the debt of any other person
and "also prohibited the raising of loans for the benefit of
others. ( Justinian's Digest: 16.1.2.1; Johannes Voet's Commentaries
on the Pandects : 16.1.1.). The latter is that when a woman has given
her consent to a written instrument evidencing a debt of her own
husband, or has signed the same, and encumbered her individual
property for herself, it be rendered absolutely void, unless it was
very clearly proved that the money was expended for the benefit of
the woman herself. (Justinian's Codex 4.29.22; Justinian's Novels:
134.8; Johannes Voet Commentarius: 16.1.1.; van Leeuwen's Roman Dutch
Law: 4.4.2).
Various
(initially conflicting) decisions in South African Law dealt with
these defences available to women about the details and effects of
the Senatus Consultum and the Authentica, and whether it rendered
their transactions void or voidable. It is not necessary to deal with
the different views in any detail, as the aspect that impacts on the
present matter is whether it can be renounced, and how it may be
done.
In
very broad and general terms, these defences can be renounced,
leaving an onus upon the party who sets up a renunciation to prove so
and also that all requirements have been met. Production of a
document containing a renunciation proved or admitted to have been
signed by a woman raises a presumption, by admission on her part,
especially so if she made a statement that she is fully acquainted
with its meaning and effect - See RANDLES BROS. & HUDSON v HUDSON
(1908) 29 N.L.R.83. Older precedents like MARICO BOARD OF EXECUTORS v
ALPORT (1899) 16 S.C. 317 and ALPORT'S EXECUTORS v ALPORT (1899) 16
S.C. 317 already settled that this is all the more so if it is
accompanied by a certificate of a notary public to the effect that
the required information was explained to her, because there is a
presumption that what a notary public has certified is correct. A
presumption only is created, and may be disproved, by extrinsic
evidence, as was discussed in KNOCKER V STANDARD BANK OF SA LTD 1933
A.D. 128 21 P.H., F.55, which the plaintiff's attorney referred to.
Therein, de Villiers JA held (at 131) that "The general rule is
no doubt that a party alleging renunciation of beneficia by a woman
is under the onus of proving that the
12
renunciation
was made with the knowledge of the nature of the beneficia".
What the Court dealt with were the Senatus Consultum and Authentica
and certification of the renunciation.
The
legislature in South Africa requires renunciation of the benefits of
the Senatus Consultum and Authentica to be notarially certified in
certain specified cases, to a woman which is not the position in
Swaziland, to my best knowledge. Even if my knowledge may be wrong,
it still does not benefit the applicant, as he is a man and he has
not renounced either of these two benefits which can only benefit a
woman. All that notarial certification could have achieved, to his
disadvantage, would have been to shift the onus on him to disprove
what was certified by a notary public to have been explained to him.
As
matters stand, where a person signs a document as a party thereto
there is a presumption that he is acquainted with its contents. Save
for a threadbare denial that he knew what he signed and basing it on
the absence of notarial certification, which is not necessary at all
in the present case, he has not made any effort at all to shift his
onus away from him. The defendant cannot be heard to say that absence
of notarial certification requires to have annexure "A"
held meaningless. He accuses the plaintiff company of fraud, based on
this incorrect assumption of the necessary requirement of a , notary
public to explain to him what he signed.
The
maxim of caveat subscriptor applies. The signed document, annexure
"A", reflects, in the view of the Court, the real and true
transaction between the parties. It is not a simulated transaction
and does not purport to be anything else that it is held out to be
-the agreed terms and conditions of the agreement of sale and the
suretyship relating thereto. The defendant asked for credit on behalf
of his company, in his capacity as director. It was granted. In turn,
the plaintiff company wanted a surety, and the defendant knowingly
bound himself in that capacity. He appended his signature three or so
millimetres above the clearly printed words: "who acknowledges
that he has read and understands the entire contents hereof "
13
There
is no other finding that can be made to the contrary, The one and
only defence that the defendant relies on is the absence of notarial
explanation of the meaning and effect of what he signed to, which
cannot be upheld.
For
these reasons, the defendant's resistance to the application for
summary judgment stands to be dismissed and it is ordered that
Summary Judgment be entered against the defendant as prayed for in
prayers 1,1 and 1.3 of the Notice of Application dated the 20th
October 2003, namely E18 871-48 in respect of goods sold and
delivered, with costs on the scale of attorney and client.
Interest
is also ordered as prayed for in prayer 1.2, but shall be subject to
filing with the Registrar, prior to mora interest being endorsed on
the Writ, a letter by the plaintiff's bankers to certify the prime
rates of interest it charged over the relevant periods, to which may
be added 3% to bring it in line with the claimed rates of interest,
and no more. The relevant interest is to accrue on all accounts after
30 days following delivery of statements, as provided for in clause 2
of the agreement.
ANNANDALE,
ACJ
