CASE
NO.: I 2674/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

MB
DE KLERK & ASSOCIATES
….......................................................PLAINTIFF

and

HARRY
MARZELL EGGERSCHWILER …..................................FIRST
DEFENDANT

MWANGI
CHEREBA VRAHAM WA KAMAU …....................SECOND
DEFENDANT

CORAM:
KAUTA, AJ

HEARD
ON: 19^TH JUNE 2012

DELIVERED ON: 27^TH
JULY 2012

JUDGEMENT

KAUTA,
AJ: [1] This is an action for provisional sentence based on
an acknowledgement of debt for N$132 587.47. The Defendants oppose
the granting of provisional sentence because, firstly the
acknowledgement of debt is subject and conditional to
other agreements which the Plaintiff did not honour. Secondly,
because the true indebtedness rests against a third party namely,
African Civil Aviation Agency (Pty) Ltd. Thirdly, because
the acknowledgement of debt was signed as a result of undue pressure
by an agent of Plaintiff. And lastly, the debt embodied in the
acknowledgement of debt relates to a future debt.

[2]
In response to the Defendants’ contentions Mr Strydom on behalf
of the Plaintiff contends firstly, that the Defendants consented to
the acknowledgment of debt to be made an order of court or for the
Plaintiff to apply for default judgment for any amount outstanding
after the 24^th of May 2011, and that this consent preclude
the Defendants to raise any defense. Secondly, that the debt does not
relate to future fees because of the cession of N$500 000.00 signed
in respect of that. Thirdly, the acknowledgement of debt is clear and
unequivocal in its terms. Lastly, the Defendants failed to prove
undue influence.

[3]
The Defendants take no issue with the fact that they signed the
acknowledgment of debt. The full court in Sperrijn & Stolp v
Van Oudtshoorn, 1906 T.S. 88, held that,
“where an acknowledgement of debt was ambiguous as to whether a
debt was in existence or merely anticipated (‘in consideration
to the sale of my farm Langerverwacht No. 100, district Ermelo, I
hereby acknowledge to be indebted to you in the sum of £150’)”,
it was not a liquid document. The reasons for so holding are not
explicitly stated, but obvious.

[4]
As a general statement the principles and practice followed by the
Cape Courts were enunciated by Kotzé, J.P., in Pepler v
Hirschberg, 1920 CPD 438, in these terms on page 443:

“Where
the acknowledgment of indebtedness is sufficiently clear and certain,
and payment depends on some simple condition or event, it is
sufficient for the Plaintiff to allege that the condition has been
complied with or the event has happened, and then the onus lies on
the Defendant to show that what was intended by the document sued on
to be a condition precedent to entitle the Plaintiff to succeed, has
not been complied with. If the Defendant is unsuccessful in
establishing that, then provisional sentence will be granted against
him. In the case before me the Defendant acknowledged
to
have received the £500, and undertook to repay the same to the
Plaintiff within a reasonable time, if the bond were not passed. The
summons sets out that the bond was not passed, and the Defendant has
not denied or controverted that…I, therefore, think that the
claim for provisional sentence must be granted against the Defendant
with costs”.

[5] A brief history of
this matter is instructive. It is common cause that the Defendants
are the Chief Operating Officer and Chief Executive Officer of the
African Civil Aviation Agency (Pty) Ltd respectively. On the 24^th
of May 2011 the Defendants on behalf of African Civil Aviation Agency
(Pty) Ltd ceded all the rights, title and interest up to the maximum
amount of N$500 000.00 in the claim of N$22 million of African Civil
Aviation Agency (Pty) Ltd against the Government of Republic of
Namibia to the Plaintiff. The Plaintiff, a firm of legal
practitioners, was the instructed legal practitioners of record of
African Civil Aviation Agency (Pty) Ltd in their claim against the
Government. This cession was in force and in effect from date of
signature until final payment of indebtedness. The final payment of
indebtedness was deliberately left open by the parties perhaps
because it depended on the outcome of the impending trial. The
acknowledgment of debt in this matter was similarly signed and
concluded on the 24^th of May 2011, the same day the
cession was signed.

[6] The similarity of
the dates of signature gives credence to the Defendants’
contention that the acknowledgment of debt was subject to other
agreements and undertakings. The other agreements the Defendants
referred to must be the cession. The Defendants are representing
themselves in this matter. Upon reading the acknowledgment of debt it
is clear that it does not reveal the cause of indebtedness. The
Defendants alleged that the true indebtedness were future legal fees
for an anticipated trial between African Civil Aviation Agency (Pty)
Ltd and the Government. The Plaintiff resists the Defendants’
contention primarily because the Defendants in the acknowledgment of
debt renounced among others, the legal exceptions non causa
debiti. In answer to this the Defendants contend that they are
layman and these legal principles were not explained by the
Plaintiff’s agent to them and in the alternative they were
compelled to sign the agreement.

[7] The onus rest on
the Defendants to prove on the preponderance of probability that they
are not liable for the debt once they acknowledge having signed the
acknowledgment of debt.

See Inglestone v
Pereira 1939 WLD 55 at 71

[8] I turn now to deal
briefly with the undertakings which the Defendants allege were part
and parcel of the acknowledgment of debt. In my view the undertaking
is grounded in the letter of the Plaintiff to African Civil Aviation
Agency (Pty) Ltd dated the 5^th of July 2011. This letter
was addressed for the Defendants attention. The letter is firstly, a
reminder to African Civil Aviation Agency (Pty) Ltd about their
overdue account. Secondly, it reminds that there are no funds on
trust to proceed with the scheduled trial. The last paragraph in the
letter was written with a dual purpose; firstly, it’s an advice
that the trial should be postponed; secondly, it’s a veil
warning that the Plaintiff will withdraw as legal practitioners of
record for African Civil Aviation Agency (Pty) Ltd, if there’s
no consent to the advice for postponement. I say a veil warning due
to the timing of this letter. The consent was sought for a trial
which was a mere six days away. It is common cause that the
Defendants rejected the advice given and consequently the Plaintiff
withdrew as legal practitioners of record of African Civil Aviation
Agency (Pty) Ltd.

[9] The date of the
letter is further important for two reasons. Firstly, it gives
credence in my view to the Defendants’ assertion that any debt
owed to the Plaintiff as at 5^th July 2012, was not owed by
the Defendants personally. Secondly, the letter despite it having
been addressed for the Defendants’ attention makes no reference
to debts owed by the Defendants personally. This in my view explains
and gives further credibility to the Defendants’ assertion that
the acknowledgement of debt was part and parcel of a group of other
agreement and undertakings. The inference is irresistible on a
preponderance of probabilities that the Defendants were asked to sign
the acknowledgment of debt in their personal capacities as security
for the due fulfillment of the obligations arising out of the cession
between African Civil Aviation Agency (Pty) Ltd and Plaintiff. This
in my view explains why the cause of indebtedness is conspicuous by
its absence in the acknowledgment of debt and the certainty of the
amount there must be as fees due to the Plaintiff at 24^th
May 2011 by African Civil Aviation Agency (Pty) Ltd. In this context,
the acknowledgement of debt between the parties is no different from
a suretyship agreement.

[10] It is trite law
that a suretyship contract is accessory to a main contract; as such
it is conditional upon the existence of a principal obligation. As
Nienaber JA put it ‘guaranteeing a non-existent debt is as
pointless as multiplying by nought’. See: Kilroe-Daley v
Barklays National Bank Ltd 1984 (4) SA 609 (A) at 622I; CFForsyth
& Pretorius Caney’s Law of Suretyship in South Africa
6ed (2010) 30; African Life Property Holdings (Pty) Ltd
1995 (5) 230 (A) at 238F. The cession being the principal obligation
in this matter is ex facie not due and payable because the
undertaking therein is that the Plaintiff will receive payment upon
the completion of the claim contemplated therein by the parties. In
view of what I say in paragraph 9 above I conclude that the
Defendants have discharged the onus and established the necessary
preponderance of probability in their favour that the agreement is
subject to further undertakings and the cession.

[11] In the result I
make the following order:

1. 
   Provisional sentence
   is refused.
   

   
   

KAUTA AJ

COUNSEL ON BEHALF OF
THE PLAINTIFF: ADV STRYDOM

INSTRUCTED BY: MB DE
KLERK & ASSOCIATES

ON BEHALF OF THE
DEFENDANTS: IN PERSON