The
plaintiff issued summons against the defendants on 18 January 2013
for the payment of $521,686=47 being money lent and advanced to
Onclass Investments (Pvt) Ltd. The plaintiffs, on its declaration,
stated that such loan was given in terms of a credit facility
agreement between the plaintiff and Onclass Investments (Pvt) Ltd.
The two defendants acted as sureties and co-principal debtors with
Onclass Investments. The plaintiffs sought an order declaring the
second defendant's property, namely, Stand 120 Adylinn Township 6
of Stand 8 of Adylinn North held under Deed of Transfer number 46187
executable. The plaintiff sought interest, collection commission and
costs on a higher scale against the defendants.
Both
defendants entered appearance to defend. On 11 February 2013, the
defendants requested further particulars amongst which they sought to
be furnished with particulars of how the amounts were disbursed.
Under paragraph 3(b) the following particulars were sought;
“3.
Ad Paragraph 9
(a)…,.
(b)
How was the money availed to the Principal Debtor? If it was by way
of Banker's Acceptances copies thereof are requested.”
The
plaintiff provided the further particulars as follows:-
“3.
Ad Paragraph 3
(a)
The money was disbursed into the principal debtor's account.
(b)
Copies of the banker's acceptances are attached hereto as Annexures
'B1', 'B2', 'B3', 'B4', 'B5', 'B6', 'B7'
and 'B8'”.
The
defendants then filed an exception to the claim as follows:
“1.
The plaintiff sues on a facility allegedly advanced in the form of
banker's acceptances, Annexures “B1”to “B8” to the
plaintiff's further particulars.
2.
Banker's Acceptances
are negotiable instruments within the contemplation
of the Bills of Exchange Act [Cap
14:02].
3.
A plaintiff who found a cause of action on a Bill of Exchange such as
a Banker's Acceptance is obliged to allege that:
3.1.
The plaintiff is the legal holder of a banker's acceptance that is
due; and
3.2.
The banker's acceptance was drawn and availed by the defendant; and
3.3
The banker's acceptance was presented for payment after the due
date; and
3.4.
The banker's acceptance was dishonoured; and
3.5.
Notice of dishonour was given in terms of the Act.
4.
The plaintiff has not alleged any of the essential requisites to
relief founded on a banker's acceptance.
5.
Consequently, the claim is bad in law for want of plea of a proper
cause
of action.”
The
excepients argued that the respondent's cause of action is founded
on Banker's Acceptance. However, the summons do not allege material
facts to a suit founded on Banker's Acceptances. The excepients
argued, therefore, that the summons do not disclose a cause of
action.
The
respondent, on the other hand, denied that its cause of action was
based on Banker's Acceptances. It is the respondent's argument
that its claim, as per the summons, is very clear. It is based on
money lent and advanced to Onclass Investments (Pvt) Ltd in terms of
a credit facility agreement. Such amounts were allegedly deposited
into Onclass Investments (Pvt) Ltd's account.
It
is true that from a reading of the plaintiff's cause of action its
cause of action arises from monies lent to Onclass Investments (Pvt)
Ltd in terms of a credit facility agreement. The plaintiff sues the
defendants based on surety documents they signed with the plaintiff
whereby the second defendant pledged a certain piece of property as
security. Sureties are persons who pledge security with a creditor to
cover the indebtedness of another. The defendants herein engaged with
the plaintiff to be answerable, in the second degree, for the default
of Onclass Investments (Pvt) Ltd. The defendants' liability in this
matter, therefore, follows that of the principle debtor. It follows,
therefore, that the defences available to Onclass Investments (Pvt)
Ltd are automatically available to the defendants as sureties.
An
exception to the summons succeeds if the excipient shows that the
summons and the declaration do not disclose a cause of action and
that it is vague and embarrassing. It is not a process to challenge
the evidence in the matter.
The
plaintiff's summons and declaration herein disclose a cause of
action. The issue of the Banker's Acceptance constitute evidence.
The defendants can plead to the averments made by the plaintiff in
the summons and declaration. The plaintiffs have a right to control
their pleadings. It is not for the defendants to substitute the
plaintiff's cause of action. It is improper for the defendants to
force the plaintiffs to base their cause of action on Banker's
Acceptance. The defendants can answer to the plaintiff's claim and
can introduce the issue of Banker's Acceptance in their defence.
The onus of showing that a pleading is excipiable rests on the
excipient. See Voset
and Others v
Kleynhans
2003
(2) SA 148 (C).
The
plaintiff referred me to the case of Francis
v Sharp
and Others
2004 (3) SA 230 where HJ ERASMUS J…, stated as follows;
“I
preface evaluation of these exceptions by three preliminary
observations. First, in Colonial
Industries
v Provincial
Insurance Co. Ltd
1920 CPD 627 at 630 BENJAMIN J said, in regard to the general
approach to exceptions:
'Save
in the instance where an exception is taken for the purpose of
raising a substantive question of law which may have the effect of
settling the dispute between the parties an excipient should make out
a very clear, strong case, before he could be allowed to succeed.'
Secondly,
the courts are reluctant to decide upon exception questions
concerning the interpretation of a contract…,. In this regard, it
must be borne in mind that an excipient has the duty to convince the
court that he had a strong clear case.”
In
my opinion, this is not one such strong case made by the excipients.
In
the premises, the exception is not successful and the application is
dismissed with costs.
