HIGH COURT OF SWAZILAND
FOODS (PTY) LIMITED
CENTRE (PTY) LIMITED
Case No. 3126/2002
S.B. MAPHALALA – J
the Plaintiff MR. K. MOTSA
the Defendants MR. A. LUKHELE
court is an opposed summary judgment application.
causa arose this way. On the 15th February 2002, the 2nd Defendant
requested in writing that a credit facility existing between
Plaintiff and 1st Defendant be extended.
the 14th March 2002, and at Manzini, 1st Defendant represented by 2nd
Defendant made a credit application with Plaintiff, which application
was duly accepted by plaintiff's General Manager, Ronnie Egambaram.
material terms of the agreement were inter alia that;
Payments of amounts owing to Plaintiff were to be made within twenty-
eight (28) days of date of statement;
Ownership of the goods sold would remain with Plaintiff until the
full purchase price is paid; and
Should legal action be taken 1st Defendant would pay costs at
attorney and client scale including collection commission.
is common cause that Plaintiff rendered its obligations and supplied
the goods and delivery was acknowledged. To this effect copies of
invoices and statements are annexed to the plaintiff's papers marked
"E3". 1st Defendant as per the terms and conditions was
obliged to pay after twenty-eight (28) days of delivery of invoice
and notwithstanding various demands has failed to do so.
instituted an action against 1st Defendant and obtained an order. A
public auction was conducted and only E3, 940-70 was "transmitted
has now instituted an action against 2nd Defendant in her capacity as
surety and co-principal debtor of 1st Defendant in terms of Clause 18
of the Credit application entered into between the Plaintiff and the
2nd Defendant. Clause 18 reads in extenso as follows:
the event of the purchaser being a company or close corporation or
other corporate body, then the signatory signing on behalf of the
purchaser shall by his merely so signing, even if his signature be
qualified, be surety herein and if there be more that one such
signatory, they shall be the surety/ies herein who bind
himself/themselves jointly and in solidum as surety/ies herein and
co-principal debtor(s) in favour of Emalangeni Foods (Pty) Ltd for
the due and punctual payment by the purchaser of all and every
obligation from whatsoever cause, howsoever arising and including any
claim for damages and shall be under renunciation of the benefits of
excussion and division. This guarantee shall be a continuing
guarantee which may only be cancelled by the purchase's notice in
writing to Emalangeni Foods (Pty) Ltd and then provided that all
amounts then owing by the purchaser to Emalangeni Foods (Pty) Ltd
have been paid in full and provided further that Emalangeni Foods
(Pty) Ltd accedes to such cancellation in writing. Notwithstanding
that this document contemplates more than one such surety, there
shall be a separate suretyship by each person who signs as surety and
should a co-surety not be liable at all or in full for whatever
reason, the other surety/ies shall nevertheless be liable in full.
Emalangeni Foods (Pty) Ltd shall have the right to extend the time
for payment by the purchaser or release the purchaser or any surety
herefrom and this shall not be deemed to be a novation of the terras
of this and shall not affect the liability of each surety to
Emalangeni Foods (Pty) Ltd. Any two or more persons liable to
Emalangeni Foods (Pty) Ltd under this agreement shall be jointly and
Defendant raised a point in limine that the plaintiff's summons did
not contain the necessary averments to sustain a cause of action on
the deed of suretyship, in particular that plaintiff's summons do not
allege a valid contract of suretyship and the causa in respect of
which she undertook liability. This aspect of the matter was argued
and the court in a judgment delivered on the 31st October 2003
dismissed the point in limine and reserved costs to the merits.
matter was argued on the merits on the 29th March 2004. The
Defendant's defence on the merits is what appears in paragraphs 3.1
and 3.2 of the answering affidavit.
defence is as follows;
The judgment obtained against Freeway Centre (Pty) Ltd has not been
executed properly against the company as such the judgment has to be
executed first against the company and then against me.
Further, 1 deny that the amount obtained on execution of the goods of
Freeway Centre (Pty) Limited is as alleged and Plaintiff is put to
strict proof thereof'.
Plaintiff replied to the above allegation in its affidavit as
follows: "7. AD paragraph 3.
Plaintiff submits that 2nd Defendant by signing as co-principal
debtor renounced the - benefit of excursion hence her argument ought
In any event the sale (annexure "E4" was conducted by an
appointed Deputy Sheriff hence this is conclusive evidence".
argument Mr. Motsa for the Plaintiff argued that a copy of the
Sheriff's return of the Distribution Account, Sale in Execution,
Movable Goods attached to the pleadings clearly show that the sale
was properly constituted and that the Plaintiff had in fact firstly
executed against the 1st Defendant, but was not able to satisfy its
second argument advanced for the Plaintiff is that the 2nd
Defendant's claim that the amount of money is not as in the credit
application, is irrelevant. The amount agreed upon in the credit
application is for an expected monthly purchase in the amount of
E400, 000-00, which is in excess of the amount claimed by the
Plaintiff. The outstanding amount of money is easily calculated and
therefore constitutes a liquid amount of money which entitles the
Plaintiff to proceed against the Defendants on the basis of summary
it is contended for the Plaintiff that the 2nd Defendant does not
deny that the 1st Defendant, to whom she has bound herself as surety,
owes the money to the Plaintiff, she merely denies that she can be
held liable as a co-principal debtor, and thereby does not disclose a
bona fide defence to the plaintiff's claim.
Lukhele for the Defendant argued that there was no proper execution
of the judgment in this case. Secondly, the nature and amount of the
principal debt is not capable of ascertainment by reference to the
document annexed as a deed of suretyship. In this regard the court
was referred to Aimer's Precedents of Pleadings (3rd ED) and Harms,
page 281 - 285. The gravamen of Mr, Lukhele's arguments is that there
are triable issues in this case.
are three issues for determination in this case, firstly, the issue
of whether execution was proper; secondly, the issue of whether the
debt is a liquidated amount in terms of Rule 32 (2) of the High Court
Rules, and thirdly, whether the Defendant has disclosed a bona fide
defence in accordance with the requirements of the section.
the issue of the execution of the judgment in the present case, it
appears that the Plaintiff has in fact executed against the 1st
Defendant and only upon not having been satisfied, it is now seeking
to execute against the 2nd Defendant. The 2nd Defendant had not only
bound herself as surety, but as a co-principal debtor. The writ of
execution was duly issued and the Sheriff of the High Court duly sold
the property of the 1st Defendant on public auction which was
properly constituted. This is reflected in annexure "E4"
being a return, distribution account of sale in execution of movable
goods. The document reflects ex facie that the public auction yielded
a purchase price of E7, 050-00 plus a sum of El13, 00 in the cash
register at Freeway Centre by the bus rank. From the total sum
Sheriff's costs and disbursement of E3, 222-30 was taken and a sum of
E3, 940-70 was execution costs owed to the plaintiff's attorney.
Therefore, I hold that the sale (annexure "E4") was
conducted by an appointed Deputy Sheriff hence this is conclusive
the second issue raised viz whether the debt is a liquidated amount
in terms of Rule 32 (2) I hold that it is a liquidated amount. In
terms of Rule 32 of the rules of this court, summary judgment can be
granted upon a claim for a liquidated amount. The rule provides as
1. Where in an action to which this rule applies and a combined
summons has been served on a Defendant or a declaration has been
delivered notice of intention to defend, the Plaintiff may, on the
ground that the Defendant has no defence to a claim included in the
summons, or to a particular part of such a claim, apply to the court
for summary judgment against that Defendant.
This rule applies to such claims in the summons as is only:
a liquidated amount in money.
claim cannot be regarded as one for a "liquidated amount in
money" unless it is based on an obligation to pay an agreed sum
of money or is so expressed that the
of the amount is a mere matter of calculation, (see Botha vs Swanson
& Company (Pty) Ltd 1968 (2) PH. F85 (CPD) as per CorbettJ).
Plaintiff, when basing the application for summary judgment on a
mortgage bond or a surety can claim less than the amount of the bond
or the suretyship. This he can do without explaining whether the
mortgagor has made payments in reduction of the capital amount of the
bond or whether there is some other reason for claiming less than
what the bond warrants. The difference between the full amount of the
bond, or the outstanding amount in terms of the suretyship and the
amount claimed need not be abandoned (see African Credit and
Investment Corporation Ltd vs Hyde 1930 WLD 146 at 149-50 and Western
Bank Ltd vs Packery 1977 (3) S.A. 137 (T) at 760E).
where the claim is for a balance due and in arrear on an open account
over a stated period, it is generally looked upon as a combined cause
of action "based on the grounds referred to in the summons"
or words to that effect, are sufficient compliance with the rule.
casu, it is my opinion that the outstanding amount of money is easily
calculated and therefore constitutes a liquid amount of money which
entitles the Plaintiff to proceed against the Defendants on the basis
of summary judgment. Annexure E3 of page 13 of the Book of Pleadings
sets out the amount due and the calculation thereof.
third and last issue for determination is whether the 2nd Defendant
has disclosed abona fide defence to satisfy the requirement of Rule
32. In order for the Defendant to succeed by not having summary
judgment granted against him, he must show that he has a bona fide
defence. For the court to make the decision whether the Defendant has
set out his defence all the needs to show is whether the Defendant
has disclosed the nature and grounds of his or her defence, and
whether, on the facts so disclosed the Defendant appears to have, as
to either the whole or part of the claim, a defence which is bona
fide and good in law. (see Muharah vs Barclays National Bank Ltd 1976
(1) S.A. 418 (A) at 427). Whether the defence is bona fide or not
depends upon the merits of that defence raised in the Defendant's
replying affidavit (see Silverleaf Pastry and Confectionary Co. (Pty)
Ltd vs Joubert 1972 (1) S.A. 125 (c) at 129).
rule does not require the Defendant to establish his bona fides, only
the bona fides of his defence.
the legal principles outlined above, it appears that in the present
case the only defence the 2nd Defendant relies on in her affidavit is
that the judgment obtained against the 1st Defendant has not been
executed properly against the company and as such the judgment had to
be executed first against the 1st Defendant and only then against the
2nd Defendant. In casu no bona fide whatsoever is disclosed.
the above-mentioned reason I hold that the Plaintiff is entitled to
summary judgment in terms of prayer 1, 2 and 3 on the notice of
application for summary judgment; and it is so ordered.