IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NUMBER: 89171/2020

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA LTD Plaintiff

and

MARLENE COETZEE First Defendant

MARLENE COETZEE N.O. Second Defendant
(In her capacity as trustee for the time being of the
JASON AND TAMIA FAMILY TRUST – IT1154/2011)

DEFENDANTS’ SPECIAL PLEA OF PRESCRIPTION

(INCORPORATED BY WAY OF AMENDMENT)

1. Plaintiff’s claims against Defendants as sureties is predicated on the

alleged indebtedness of Trenchless Road Crossing CC (in liquidation)

(“Trenchless”) to Plaintiff in terms of three instalment sale agreements

concerning certain equipment and assets, identified by Plaintiff in its

Particulars of Claim as deals 0007, 0008 and 0010 (“the instalment

sale agreements”).

2. The three instalment sale agreements were all concluded in 2015.

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3. Plaintiff has pleaded at paragraphs 10.2, 11.2.1 and 11.2.2 of its

Particulars of Claim that each instalment sale agreement required

Trenchless to make monthly payments to Plaintiff, in the amounts

pleaded at paragraphs 10.2.1, 10.2.2, 11.2.1.1, 11.2.1.2, 11.2.2.1 and

11.2.2.2 of the Particulars of Claim, as well as one final payment in

respect of each instalment sale agreement, in the amounts pleaded at

paragraphs 10.2.3, 11.2.1.3 and 11.2.2.3 (“the monthly instalment

payments”).

4. Each monthly instalment payment fell due on the dates as pleaded by

Plaintiff at paragraphs 10.2.1, 10.2.2, 11.2.1.1, 11.2.1.2, 11.2.2.1,

11.2.2.2, 10.2.3, 11.2.1.3 and 11.2.2.3 of the Particulars of Claim.

5. In the event of Trenchless defaulting on any monthly instalment

payment when it fell due, Plaintiff’s claims in respect any such arrear

monthly instalment payment from Trenchless arose on the date each

such monthly instalment payment fell due.

6. Trenchless defaulted in respect of the monthly instalment payments

due in respect of the instalment sale agreements in 2016, alternatively

2017.

7. Trenchless was placed under a final Order of winding-up on 21 August

2019.
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8. Plaintiff has not filed a claim against Trenchless (in liquidation).

9. Accordingly, the completion of prescription of the debts comprising

Plaintiff’s claims as set out in paragraphs 3 and 4 above has not been

delayed by operation of the provisions of section 13 of the Prescription

Act, 68 of 1969.

10. Summons in this matter was served on 7 January 2021, more than

three years after the dates on which the Plaintiff’s alleged claims arose

in respect of those monthly instalment payments which fell due prior to

7 January 2018.

11. In the premise, the portion of Plaintiff’s claims comprising the monthly

instalment payments that fell due prior to 7 January 2018 have

prescribed in terms of the Prescription Act, 68 of 1969.

WHEREFORE Defendants pray that their special plea of prescription

be upheld, and that those portions of Plaintiff’s claim which have

prescribed as pleaded herein, be dismissed with costs.

DEFENDANTS’ PLEA:
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First and Second Defendants plead as follows to Plaintiff’s particulars of

claim:

Ad paragraphs 1 to 4

1. Defendants admit the content of these paragraphs.

Ad paragraph 5

2. Save to plead that Mr Coetzee’s office as trustee was ipso facto

vacated on 20 December 2017, Defendants admit the content of this

paragraph.

Ad paragraphs 6 and 7

3. Defendants deny that the instalment sale agreements in question were

concluded during the period January 2012 and October 2015.

4. The instalment sale agreements were all concluded in 2015.

5. Defendants aver that the agreements in terms of which the vehicles

and equipment forming the subject matter of Plaintiff’s claims were

delivered to Trenchless Road Crossing CC (now in liquidation)

(“Trenchless”) are instalment agreements as envisaged by Section 1 of

the National Credit Act, No. 34 of 2005.

6. Defendants, however, deny that annexures “POC5” and “POC6” alone

constitute instalment sale agreements, rather they are quotations that

are subject to certain suspensive conditions.

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Ad paragraph 8

7. Defendants admit the content of this paragraph.

Ad paragraph 9

8. Defendants note the content of this paragraph, and adopt the same

reference herein.

Ad paragraphs 10 and 11 (including all sub-paragraphs)

9. To the extent that the content of these paragraphs accurately reflect

the relevant provisions of annexures “POC4” to “POC6”, they are

admitted only insofar as reflecting those provisions, they are otherwise

denied.

10. Defendants repeat that which is pleaded below in paragraph 14 in

relation to Plaintiff’s and Trenchless’ rights and obligations in respect of

the instalment sale agreements as from 2 May 2018, and accordingly

deny:

10.1 that Plaintiff is the owner of the assets;

10.2 that Trenchless had obligations to make payments to Plaintiff in

terms of the instalments envisaged in the instalment sale

agreements subsequent to 2 May 2018;

10.3 that Trenchless can be liable for any legal costs in terms of the

instalment sale agreements incurred subsequent to 2 May 2018;

10.4 that Plaintiff would be entitled to exercise any of its remedial rights

in terms of the instalment sale agreements in the event of

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Trenchless being wound-up, save for those rights and obligations

provided for by the operation of Sections 83 and 84 of the

Insolvency Act Act 24 of 1936.

Ad paragraph 12

11. Defendants admit that Trenchless was placed under a final order of

winding-up on 21 August 2019.

12. Defendants aver that as a matter of law, the winding-up of Trenchless

is deemed to occur on the date the relevant application was lodged,

namely 2 May 2018.

Ad paragraph 13 (including all sub-paragraphs)

13. The content of these paragraphs is denied.

14. In amplification of the aforesaid denial, Defendants aver that as a

consequence of Trenchless being wound-up, and as from 2 May 2018

by occurrence of the consursus creditorium (“concursus”):

14.1 Plaintiff’s ownership of the assets terminated;

14.2 the assets fell into the estate of the insolvent Trenchless;

14.3 Plaintiff obtained a hypothec over the assets;

14.4 the structure of the rights and obligations of Plaintiff and

Trenchless as set out in the instalment sale agreements were

substituted for those created by section 83 and 84 of the

Insolvency Act, No. 24 of 1936; and

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14.5 Plaintiff’s claims in terms of the instalment sale agreements was

fixed as at 2 May 2018 and fall to be decided by application of

section 83 and 84 of the Insolvency Act Act No. 24 of 1936.

15. Further, and in any event and without derogating from that which is

pleaded in paragraph 14 above, Defendants deny the quantum of

Plaintiff’s claims as relied upon in its particulars of claim and as

pleaded inter alia hereunder and aver:

15.1 payments in the amount of R175 000.00 were made to Plaintiff in

respect of Deal 0010, subsequent to concursus in respect of the

instalment sale agreements, which payments fall to be deducted

from Plaintiff’s claims herein with the necessary adjustments in

any claim for interest and/or fees and charges and dealt with by

the operation of Section 83 of the Insolvency Act, No. 24 of 1936;

15.2 Plaintiff has, without lawful basis to do so, incorporated legal costs

in its respective claims under the respective instalment sale

agreements. Such costs were not due and payable either now or

at the time they were so incorporated, as such costs were:

15.2.1 incorporated without due notice; and

15.2.2 neither reasonable, agreed nor taxed.

15.3 Plaintiff’s failure to deduct payments made subsequent to

concursus and its incorporation of legal costs as aforesaid has,

concomitantly, resulted in Defendant’s account unlawfully being

debited with interest in respect of such costs.

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16. Plaintiff has failed to comply with its obligations as envisaged in section

83 of the Insolvency Act Act No. 24 of 1936 which failure has

prejudiced the Defendants in their capacities as sureties for

Trenchless.

17. To the extent this Honourable Court may conclude that “POC9” and

“POC10” are valid and enforceable (which, for the reasons pleaded

herein, is denied) and as a result of Plaintiff’s prejudicial conduct as

aforesaid, First and Second Defendants are entitled to be released

from their obligations as set out in “POC9” and “POC10”.

Ad paragraph 14

18. Defendants note the content of this paragraph.

Ad paragraph 15

19. Defendants note the attachment of the certificates as alleged

hereunder.

20. For the reasons pleaded in the above paragraphs 10, 14 and 15

Trenchless’ liability as reflected therein is denied.

Ad paragraph 16

21. Defendants have no personal knowledge as to the correctness or

otherwise of the allegations hereunder.

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Ad paragraph 17

22. Defendants admit the conclusion of the suretyship in question on the

part of First Defendant.

23. Defendants deny it is competent for Plaintiff to seek to incorporate by

reference into a pleading a written agreement forming the subject

matter of Plaintiff’s claim by use of the phrase “…the contents of which

are to be read as if specifically pleaded herein.”.

Ad paragraph 18

24. Defendants deny that, in signing annexure “POC10”, Second

Defendant was duly representing the Jason and Tamia Family Trust

(“the Trust”) and aver that:

24.1 at the time “POC10” was signed, two trustees held office;

24.2 it was necessary for the trustees for the time-being of the Trust to

act jointly;

24.3 in terms of clause 3(e) of the trust deed, a quorum of two trustees

was necessary for a meeting of the trustees; and

24.4 the Trust did not resolve, nor could it have done so, that Second

Defendant could act alone in binding the Trust as she purported to

do in signing “POC10”.

25. In the circumstances, the Trust was not bound as surety and/or co-

principal debtor with Trenchless in favour of Plaintiff.

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Ad paragraph 19

26. Defendants note the content of this paragraph.

Ad paragraph 20 (including all sub-paragraphs)

27. To the extent that the content of these paragraphs accurately reflect

the relevant provisions of annexures “POC9” and “POC10”, they are

admitted insofar as reflecting those provisions, they are otherwise

denied.

28. Defendants deny that, despite the wording of the suretyships, that the

rights of Plaintiff would not be affected in the event of Trenchless being

liquidated and repeat their averments set out in paragraphs 10 and 14

above.

Ad paragraph 21

29. Defendants deny, for the reasons pleaded herein that the principal

debt as formulated and quantified by Plaintiff is due, owing and payable

by Trenchless to Plaintiff.

Ad paragraph 22

30. For the reasons pleaded in the above paragraphs 10, 14, 16 and 17,

the content of this paragraph is denied.

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Ad paragraph 23

31. For the reasons pleaded in the above paragraphs 10, 14 to 17, 24 and

25, the content of this paragraph is denied.

Ad paragraph 24

32. For the reasons pleaded herein, Defendants deny:

32.1 the principal debt is due, owing or payable by them; and

32.2 in any event, that the certificates of balance referred to hereunder

accurately reflect the liability of Defendants, either jointly or

severally.

Ad paragraphs 25 and 26

33. Defendants admit that the National Credit Act, No. 34 of 2005 finds no

application.

WHEREFORE Defendants pray that Plaintiff’s claims be dismissed with costs.

DATED AND SIGNED AT ________________THIS ______ DAY OF

NOVEMBER 2021.

______________

S. B. Laubscher

(duly admitted in terms of Scetion 4(2) of Act 62 of 1995)

STUART LAUBSCHER INC.

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Per:_______________

Attorneys for Defendants

12 Buckingham Road
Mill Park
PORT ELIZABETH
c/o LOUIS HERBERT ATTORNEYS
2nd Floor, 28 Wale Street
Waalburg Building
CAPE TOWN
TO: THE REGISTRAR
HIGH COURT
CAPE TOWN

AND TO: EDWARD NATHAN SONNENBERG INC.

1 North Wharf Square
Loop Street
Foreshore
CAPE TOWN
REF: A Spies/0439432
Email: aspies@ensafrica.com