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IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION. PRETORIA}
DATE: 22 JULY 2016

CASE NO: 64166/ 2015

In the matter between:-

ANDRIES J H ESTERHUIZEN	APPLICANT

and

STAN RIO PIPE AND STEEL (PTY) LIMITED	RESPONDENT

JUDGMENT
APPLICATION FOR LEAVE TO APPEAL DELIVERED ON 22 JULY 2016

VILAKAZI AJ:

[l ]   In a judgment delivered on 29 January 201 6, I granted summary judgment   in   favour   of   the   Respondent   in   the   amount   of R503 393.68  ,  interest  at  9%  per  annum  tempore  morae  on R503 393.68 until the full debt is extinguished  and  costs  on  the scale  of  attorney  and  own  client.

[2]       The Applicant  has applied for  leave to appeal against  the whole of  that judgment.

I

[3]  The test in respect of applications for leave to appeal is well established. I am to consider, in determining this application, is there a  reasonable  prospect  that  another  court  would  on appeal come to a different conclusion than that reached by this court.

[4]        The  position with regard to the assessment  and determination  of summary  judgment   application  is  well  established.  The  test  is whether  the  Defendant  has set out in its opposing affidavit what is  referred  to  as  a  bona  fide  defence.  A  bona  fide  defence entails  more  than  the  allegation  of  matter,  which  on  its  face would  amount  to  a  defence.  It  requires,  in  order  for  the  bona tides  requirement   to  be  satisfied,  the  setting  out  of  sufficient factual   allegations   to   persuade   the   court   that   the   defence raised, is raised not only in name, but in substance.

[S]   The claim of  the respondent against  the applicant  arises from  a deed of suretyship in terms of which  the applicant  bound himself as surety and co- principal debtor in favour of the Respondent in respect of all the obligations of  Nansu  Staal  (Pty)  Ltd, the principal debtor, with registration number 1996/05360/07 with a credit limit of R5OO 000.00 arising from an agreement of sale and deed of suretyship entered into with the Respondent. The application for leave to appeal was premised upon  2 grounds, firstly;

[6]    The applicant challenges  the validity  of the deed of  suretyship and consequently the debt relied on by the respondent. Page 1 of the application for credit facilities and suretyship makes mention of Nansu Staal (Pty) Ltd and its registration number. The details of the principal debtor on page 2 are not inserted. On the very same page the terms and conditions  of the agreement   of

sale and deed of suretyship was signed by a Mr AJ Esterhuizen in his capacity as director, surety and co-principal debtor on 6 May 2014. Clause 12 of the terms and conditions provides that the party who has appended their signature hereto on behalf of the purchaser binds himself as surety and co- principal debtor in solidum and in favour of the  Respondent, the seller, in favour  of all the obligations of the purchaser, past, present and future. The signatories hereto renounce the benefits  of  excussion  and cession of action.

[7]       The  critical question  here is whether  the  deed of  surety is    invalid in terms of section 6 of the  General  Law  Amendment  Act  50 of 1956 as the applicant  seems to  suggest.

[8]         On the face of this document I am satisfied that it appears to be a valid deed of suretyship. The identity of the  principal  debtor is easily  ascertainable   and  identifiable  on  page 1 of  this   agreement.

[9]    The  next determination is what  capacity the Applicant  signed in. Page 2 clearly illustrates that he signed in two capacities  on behalf of the company, Nansu Staal, being the principal  debtor and also as surety. Consequently his defence that the deed of suretyship is invalid is without merit and falls to be dismissed.

[ l0]      The   second   ground   of   appeal   is   that   the   respondent   has approved  a  business  rescue  plan  of  Nansu  Staal  (Pty)  Limited,
the principal debtor and consequently the obligations of the applicant in his capacity as surety is suspended.

[11] The applicant' s assertion is incorrect. The business rescue plan establishes  an  agreement  between  the   creditor   and   the principal debtor not to sue until the happening of  a  future event. There   is   no  reference   or   stipulation   of   the   obligations   of the

applicant in his capacity as surety of Nansu Staal in the business rescue plan (see New Port Finance Company (Pty)  Ltd v Nedbank Ltd [2015] 2 ALL SA 1 SCA. There is nothing that prevents the respondent from proceeding against the surety. The fact that the respondent has approved the business rescue plan does not mean the respondent has renounced its rights against the surety. The compromise arrangement by the creditors, if any, does not affect  the  rights of  creditors  against  a third party.

[12] I conclude that the applicant failed to  show  that  there  is reasonable prospect of success on appeal and another court would  come  to  a  different   determination.   Viewed   holistically
there are no other reasons an appeal should    be heard.

[13]	In the result the appeal is  dismissed	with costs 

TD VILAKAZI

	 ACTING JUDGE OF THE HI
GAUTENG, PRETORIQ

APPEAR ANCES:

FOR APPLICANT INSTRUCTED BY FOR RESPONDENT INSTRUCTED BY DATE HEARD

ADV R RAUBENHEIMER HACK STUPPEL & ROSS STOOP SC
COETZER & PARTNERS 20 JULY 201 6