IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION

CASE NO.: 1153/2008

In the matter between: 

and

CRAIG THOR CORNFORTH				 3™ DEFENDANT

DATE OF HEARING 				30 OCTOBER 2008 
DATE OF JUDGMENT				6 NOVEMBER 2008

COUNSEL FOR THE PLAINTIFF 			ADV ZWIEGELAAR
COUNSEL FOR THE DEFENDANTS  		ADV HITGE

					JUDGMENT

[1] The Spar Group Limited, the plaintiff, seeks summary judgment against Tradebusters 1054 CC (the first defendant), J A Swigelaar (the second defendant) and C T Cornforth (the third defendant) for:
1.	Payment of by the defendants in the sum of R3 141 843.86, jointly and severally, the one paying the other to be absolved;
2.	Interest in the sum of R3 141 842.86 at the rate of 19.5% per annum calculated from 5 February 2008 until date of payment; and
3.	Cost of suit on the scale as between attorney and own client.

[2] Only the third defendant opposes the application. He and the second defendant are sureties who have bound themselves for the payment of all monies which are due or may become due and owing from time to time by the principal debtor to the plaintiff from whatsoever cause arising. The Deed of Suretyship wrongly reflects the name of the first defendant which is the principle debtor.

[3]   The third defendant limited his opposition to the application for summary judgment to challenging the quantum of the first defendant's indebtedness to the plaintiff.

[4] He says he ceased to be a member of the first defendant from mid 2003 and has not been involved in the affairs of the first defendant since then. He says he is accordingly not in a position to independently calculate the quantum of the alleged debt of the first defendant.

[5] He says he has a reasonable suspicion that the amount claimed is incorrect:
4.	It does not appear from plaintiff's particulars of claim over which period exactly the plaintiff effected payment for "drop shipments" allegedly paid.
5.	The outstanding balance owing in terms of the February statement does not tally with the amount claimed.
6.	

7.	The plaintiff accordingly seeks to recover interest on interest, without making out a case entitling it to cumulative (capitalised) interest.
8.	It is presently impossible to establish the quantum of the plaintiff's claim only in respect of the capital amount allegedly due with reference to the particulars of claim.
9.	Compound interest may only be awarded where an express agreement to pay compound interest had been entered into by the defendant.
10.	The plaintiff has in addition debited the first defendant's account with "sundry charges", without a basis having been disclosed in the Particulars of Claim or any annexure thereto, for doing so.

(i) A reasonable suspicion exists that the account of the first defendant was not credited by the plaintiff with the proceeds of the sale prior to verifying the quantum of its claim.

11.	
12.	

"OBLIGATION TO PAY PROMPTLY
THE PURCHASER SHALL DULY AND PROMPTLY PAY TO THE SELLER THE PRICES OF GOODS SOLD TO THE PURCHASER AND OTHER DEBTS OWING FROM ANY OTHER CAUSE, WITHOUT DEDUCTION OR DEMAND, ON OR BEFORE DUE DATE IN ACCORDANCE WITH THE CREDIT FACILITIES ALLOWED FROM TIME TO TIME. IF THE PURCHASER FAILS TO EFFECT PAYMENT OF ANY MONIES DUE TO THE SELLER ON THE DUE DATE, THE PURCHASER SHALL PAY INTEREST ON ALL SUCH OVERDUE MONIES AT THE RATE FROM TIME TO TIME EQUAL TO 5% ABOVE THE PRIME BANK OVERDRAFT RATE CHARGED BY THE SELLER'S BANKERS, CALCULATED FROM DUE DATE TO THE DATE OF PAYMENT, BUT NOT EXCEEDING THE MAXIMUM RATE ALLOWED IN LAW."

With the possible exception of some amount which could relate to sundries, which have not been claimed in the summons, I am of the view that the third defendant has not raised any cause for concern regarding the quantum of the claim.

I am disposed to exercise the discretion entrusted to this court, to take into account the possibility that the amount claimed includes sundry items that have been levied by the plaintiff since at least June 2003. I am also mindful that interest on this amount has been claimed and capitalised. I am not able to calculate this. I however think that by entering judgment for R3 000 000.00 and granting all three defendants leave to defend the balance is the best that can be done.

In the premises:
13.	Summary judgment is entered against the defendants for payment of R3 000 000.00, jointly and severally, the one paying the others to be absolved.
14.	Interest on the sum of R3 000 000.00 at the rate of 19.5% per annum calculated from 5 February 2008 to date of payment.
15.	That leave be granted to the defendants to file a pleas within 15 days from date of this judgment
16.	That the defendants pay the costs of this application jointly and severally the one paying the others to be absolved.

A A LANDMAN
JUDGE OF THE HIGH COURT

ATTORNEYS: