The
applicants entered into a lease finance facility with the
respondents. They fell into arrears in terms of the lease agreement.
On
10 September 2014, the respondents obtained a default judgment
against the applicants for the payment of $88,225=14 together with
interest at the rate of 25% per annum. In terms of the order,
specified equipment was also declared executable. In October 2014,
which was after the default judgment had been obtained, the
applicants made a payment of US$50,000= and subsequently made another
payment, on 3 and 4 March 2015, totalling US$38,000=. They therefore
argue that save for $225=14, and interest, which they are willing to
pay upon it being calculated, they have essentially satisfied the
debt as per court order.
They
additionally argue that if the respondents consider any other amounts
as still due over and above the amount stipulated in the court order,
with interest, then they need to obtain another court order.
The
first respondent, on the other hand, attached certain buses belonging
to the applicants in January 2015 though they did not remove them. It
continues to threaten removal in the face of the applicants'
refusal to sign a Deed for Settlement for what they deem to be still
due. According to the first respondent's opposing affidavit,
despite the above mentioned payments being made, the $50,000= went
towards clearing arrear rentals which had accrued after
the issuance of summons on 30 May 2014. Following this payment, it is
stated, therefore, that the applicants remained indebted in the sum
of $82,225=14 made up of arrear rentals and $50,000= for residual
value for certain leased equipment. It is argued that the further
payment of $38,000= went towards settling the residual value of
$50,000= leaving a balance for that at $12,000=. They argue that the
residual value fell due on 28 September 2014 when the lease agreement
expired.
The
gist of their argument is thus that an amount of $82,948=60, to date,
remains due and it is this amount that they threaten to execute using
the US$88,225=14
court order obtained in default. They rely on clause 7 of the lease
agreement which allowed them to appropriate payment for any
debt due. The clause they rely on reads as follows:
“The
lessor may appropriate, at his sole discretion, any payments received
from the lessee to any indebtedness due by the lessee to the lessor,
the lessee waives his rights to appropriate payments to any other
debt or account of his choice.”…,.
If,
as counsel for the respondents purported to argue in his oral
submissions, that the respondent was entitled to apportion payment
made towards any debt owing, then it stands to reason that by issuing
summons for what the respondent claimed had not been paid by the
applicant, it thereby elected to apportion the payment it sought to
the fulfilment of those arrears that were owing as at the time of
issuance of summons.
In
their heads of argument, the applicants drew on the dictum in the
cases of Jossub
v Tayob
1910
TS 480 and Swardiff
(Pty) Ltd v Dyke N.O.
1978 (1) SA 928
(A)…,
regarding the
proposition
that a judgment of the court for alleged breach of an obligation
discharges the obligation and converts the debt into a new debt by
virtue of the judgment.
However,
the issue is not whether the judgment obtained wiped out the original
contract between the parties. It was never brought as such nor is
this the issue before me. In my view, the simple issue for resolution
herein is whether or not the applicants have paid the amount that was
ordered by the court in HC4370/14 as that is what the respondent
obtained as their entitlement in terms of the judgment sought;
furthermore, it was claimed as what was due in arrears at the time.
The
dispute which the respondent issued summons for was for the payment
of $88,225=14.
The first respondent obtained a judgment, albeit in default, for this
amount on the basis that the applicants had failed to file their plea
timeously. The judgment was therefore obtained on the basis of
procedural neglect rather than on the merits. Nonetheless, in so far
as it had not yet been set aside, albeit there is a pending
application for its rescission, it continues to stand as the court's
pronunciation of the resolution of the dispute between the parties.
It spells out the rights of the respondent to payment and the
liability of the applicants to pay in the context of the dispute that
had been placed before it. Therefore, in so far as the contested
issue between the parties for which the judgment was obtained was for
the payment of $88,225=14,
the payment of US$50,000= and the additional payment of $38,000=
having both been made after the date of the court order, could only
have gone towards the satisfaction of the debt for which the first
respondent had issued summons. The judgment specified with certainty
the amount that was to be paid. It is this amount, as per order of
the court, that the applicants were entitled to satisfy.
See
also Goldsearch
Technical Services (Private) Limited v Taonga Mukonoweshuro &
Anor
HH711-15.
It
matters not, as the respondent tries to argue, that at the time that
the payment was made, the applicants were actually not aware of the
default judgment. Since the applicants have paid the amount
stipulated, save for a balance of $225=14, which they admit owing
together with interest on the judgment amount as well as legal costs,
they are correct that their payment was in terms of the court
judgment. The first respondent cannot execute for the full sum on an
order which has largely been fulfilled on the basis of the argument
that there were other amounts owing. If the first respondent is of
the view that it is still owed monies which arose after it instituted
its claim, then it must institute a separate action for those claims.
Furthermore, there is nothing in the order obtained, or in the
summons issued, that seems to suggest that the equipment deemed
executable was a separate issue from the fulfilment of the above
debt.
Accordingly
it is ordered that:
1.
The
execution of the judgment of this HonourableCcourt in case HC4730/14
be and is hereby stayed.
2.
The
second respondent is hereby interdicted and stopped from removing
into execution the property of the applicants attached in execution
in terms of the judgment of this court in case HC4730/14.
3.
The
first respondent shall deliver to the applicants' legal
practitioner a statement of the balance due and outstanding in
respect of the interest in terms of the judgment in case no.
HC4730/14 within seven days of the date of service of this court
order upon them whereafter the applicants shall pay the said
respondents the amount of such balancing outstanding.
4.
The
first respondent shall pay costs of this application.
